NEWBURYPORT — A local man who police say was fondling himself while watching women unload groceries in the Market Basket plaza in February suffered a legal setback Tuesday when a judge denied his motion to toss alleged statements he made to police shortly before his arrest.

Malcolm Hein Jr., 70, of Carter Street was arraigned Feb. 18 in Newburyport District Court on charges of open and gross lewdness, and driving while under the influence of alcohol (second offense).

Judge William Martin set bail at $1,000 cash and ordered Hein to stay away from Market Basket and the shopping plaza while awaiting a possible trial. Hein posted bail shortly after his arraignment.

Newburyport police Officer Eric Marshall was off duty on Feb. 17 about 4:15 p.m. when he received word from a friend that there was a suspicious man in the Market Basket plaza driving around to different parking spots so he could watch women unload their groceries.

“(The reporting party) further related that it appeared as if the male was masturbating while staring at these women,” Marshall wrote in his report.

By the time Marshall caught up with Hein, he had driven over to the Shaw’s parking lot at Port Plaza and parked close to another woman unloading her groceries. Marshall then asked his friend to call 911.

As Marshall walked toward Hein’s car, the officer could see him fondling himself, the officer wrote in his report. Hein was so fixated on the woman he was watching that he was caught completely by surprise when Marshall began talking to him.

Marshall identified himself as a Newburyport police officer and arrested Hein on a charge of open and gross lewdness.

Hein said Marshall had no right to arrest him because he was in the privacy of his own car. He also accused Marshall of pulling his pants down.

While speaking to Hein, Marshall wrote in his report that he noticed a strong odor of alcohol coming from him and saw signs of alcohol impairment. Marshall attempted to inform the woman in the Shaw’s parking lot about what he said had just happened but she had driven away.

While at the police station for booking, Hein refused to take a blood-alcohol level test. He also admitted having two beers before getting behind the wheel. It was at the station where he was charged with drunken driving, according to court records.

During Tuesday’s hearing in District Court, Hein’s attorney argued that statements made by Hein while at the scene were inadmissible because Marshall had not given him a Miranda warning.

A Miranda warning advises a suspect they have a right to remain silent, a right to have an attorney present while questioned, and warns that anything they say can be used against them in a court of law. The attorney also said statements made at the station prior to Hein being Mirandized should also been stricken.

Marshall, one of two witnesses called to the stand during the hearing, admitted he did not give Hein a Miranda warning. Instead, it was given to him later by Officer Michael Wilichoski at the police station. It was at the station that Hein admitted having two beers. Wilichoski was the second witness called to the stand.

Essex County prosecutor Paolo Cosmo argued that officers were simply trying to ascertain what was happening and were also concerned with Hein’s well-being.

Judge Allen Swan sided with Cosmo and denied the motion to suppress involving Hein’s statements made in the supermarket parking lots. But Swan granted the motion to toss Hein’s statement about having two beers before driving.

Hein is due back in court Nov. 2.

Dave Rogers is a reporter with the Daily News of Newburyport. Email him at: Follow him on Twitter @drogers41008.

Dave Rogers is a reporter with the Daily News of Newburyport. Email him at: Follow him on Twitter @drogers41008. 

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