BY JULIE MANGANIS
---- — SALEM — Prosecutors say it was a rescue off a boat that may have been about to sink.
But Bradford Billings Smith’s attorney argued yesterday that it was an illegal “exit order,” made by a harbormaster who fully intended to charge his client with drunken driving.
Smith, 43, is facing a charge of drunken boating after running “hard aground” on Lobster Rock last July. With two prior drunken driving convictions, the stakes are high for Smith, of 45 Memorial Drive, Salem, who is facing a minimum mandatory 150 days in jail if convicted.
Smith is scheduled to stand trial on May 20.
But yesterday his attorney, Mark Barry, argued that much of the evidence in the case against Smith is tainted by what he contends is the illegal removal of Smith from his 26-foot Seaway motorboat, followed by questioning by the harbormaster, his assistant and an Environmental Police officer.
Because of that, he argued, it should not be used against Smith at trial.
“They wanted him off that boat because they were going to charge him,” said Barry, who suggested that there was no basis for the officials to arrest his client at that point.
Not so, suggested Salem Harbormaster Bill McHugh, who had responded to a call from his Beverly counterpart about a motorboat careening around the inner harbor and sideswiping a sailboat that was moored near Salem.
The boat was nearly entirely out of the water, McHugh testified, as Smith continued trying to back off of the rocks, which had emerged during low tide.
“He wanted a tow rope,” McHugh testified. “You gotta tow me off here, throw me a line,” McHugh quoted Smith as saying.
But with no idea whether the boat had been damaged, McHugh said, that was not an option. Nor was leaving Smith on the boat.
With the tide going out, it was fast becoming a safety issue, not only for Smith but for McHugh and assistant harbormaster Jim Dunn, a retired police chief.
Beyond that, “it became evident that he was unsteady on his feet,” McHugh said.
Barry suggested that the unsteadiness might be nothing more than a case of “sea legs.”
McHugh testified that Smith refused to get off the boat several times, and was eventually pulled off by Dunn, with McHugh pushing from behind.
Barry said that’s only because Smith was concerned about his expensive boat being left unattended.
On the harbormaster’s boat, and later at Winter Island, Smith made a series of incriminating statements, including admitting to having “two big” drinks. Dunn testified that he was also concerned when Smith noticed his sidearm and told Dunn that he knew how to use a gun.
The harbormasters testified that they read Smith his Miranda rights at least twice.
Dunn, the former Lynnfield police chief, said he believed removing Smith from the boat was justified because officials owe a duty of care to the public that can sometimes be held to override the Fourth Amendment right against unreasonable search and seizure.
Prosecutor Alex Grimes urged the judge to reject the motion, arguing that police were responding to a report of a potential crime, the earlier boat accident, and had a legitimate concern for Smith’s safety as well.
Grimes also said that, while as a practical matter it was unlikely that Smith would be able to go anywhere, he was not legally under arrest until the harbormasters reached Winter Island, where they met Salem and Environmental police.
Judge Sabita Singh took the motion under advisement and said she expects to rule within the next several weeks.
Smith, meanwhile, has been held without bail since testing positive last month for alcohol on a home alcohol monitor, a violation of his bail conditions. A Salem District Court judge rejected Smith’s claim that the result was due to his use of toothpaste or mouthwash.
Courts reporter Julie Manganis can be reached at 978-338-2521, via email at email@example.com or on Twitter @SNJulieManganis.