Loud sex enough for cops to search your home, court rules

By Daniel Tencer
Tuesday, March 16, 2010 17:28 EDT
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For Brian McGacken of Farmingdale, New Jersey, an evening of loud sex resulted in a 10-year prison sentence for growing marijuana.

On Feb. 17, 2007, New Jersey state troopers arrived at McGacken’s home, responding to an anonymous 911 call complaining of screams coming from McGacken’s home. McGacken explained the noise was a bout of loud sex; his girlfriend appeared at the front door and corroborated his claim.

But officers searched his home anyway, and found enough marijuana — including potted plants — to put him away for 10 years on charges of producing a controlled substance.

Appealing the conviction, McGacken argued that, once police knew the noise was consensual sex, they no longer had reason to search his home.

But the appellate panel at the Superior Court of New Jersey disagreed. On Monday, they dismissed McGacken’s appeal, stating that “the potential for harm was too severe for the police to accept an explanation for loud screaming that could have been a cover-up of its true source.”

The ruling stated in part:

The police are not required to accept the explanation that a person answering the door gives for a distress call. While loud sex may have been a plausible source of screaming, that explanation was not so reliable that the police acted unreasonably in investigating further….

Moreover, by first questioning defendant and his girlfriend, the troopers discounted the possibility that someone may have made a false report of screaming. Defendant did not deny that screaming had occurred in his residence. His admission made it unnecessary for the police to seek corroboration to establish the reliability of the anonymous 911 call.

“The screaming, confirmed by the police to have occurred, gave [the police] an objectively reasonable basis to believe that a limited investigation was necessary to determine whether anyone else was in the home and in need of aid,” explains the NJ Family Issues blog. “While loud sex may have been a plausible source of screaming, that explanation was not so reliable that the police acted unreasonably in investigating further.”

Law.com reports that McGacken initially took few steps to prevent the police from entering his home. When he was asked for identification, he went upstairs to retrieve it and “did not object when a trooper followed him.”

On the second floor, the trooper smelled raw marijuana and saw McGacken use his foot to push a tray under a couch. Asked what was on the tray, McGacken admitted it was marijuana. In the bedroom, the trooper saw bagged and loose marijuana as well as growing plants. Arrested, McGacken consented to a search of his home, resulting in the seizure of 12.5 ounces of loose and bagged marijuana, 15 plants and marijuana-related equipment and paraphernalia.

McGacken is serving a 10-year sentence with no possibility of parole for 39 months.

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