SalemNews.com, Salem, MA

Local News

April 27, 2013

Accused drunken Salem boater wants evidence tossed overboard

(Continued)

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 jmanganis@salemnews.com or on Twitter @SNJulieManganis.

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