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Loud Sex and Marajuana....Court rules loud sex is enough to search your home
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| Nexxus |
Loud sex enough to search your home, courts rule
By Daniel Tencer - 3/16/10
For Brian McGacken of Farmingdale, New Jersey, an evening of loud sex resulted in a 10-year prison sentence for growing marijuana.
http://rawstory.com/2010/03/loud-sex-cops-search-home/
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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| |Thrax| |
| sucks for him, he gave consent. |
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| R!CH |
| the cops did the right thing though... what if it was one of those sadistic couples that tortures/rapes someone they kidnapped (ie: jaycee dugard) or their own child? you can't just assume there are only two people in the house and not investigate beyond a cracked front door |
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| DaveT |
| They did the right thing in the end...but from what I see, if they said there were no loud noises at all..if they denied they were being loud....then the cops wouldn't have been able to go in? Funny. |
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| bigperf |
if he doesnt have marijuana at his home, then the cop doesnt have any to find...
if you dont commit crimes, it drastically improves the chances you will end up in jail. |
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| zerotonin79 |
the only injustice is 10 ing years for growing pot.
i bet that loud bitch will probably keep her mouth shut when shes getting it from now on. |
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| 72hrpartyanimal |
the only loud sex i hear is
THAT'S IT?!?!?! |
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| laocoon7 |
According to the 4th amendment to the constitution, an officer requires probable cause that something illegal is going on. Say you are driving down the road and have a taillight out, when you get pulled over, the cop has no reason to see if the soda can between your legs is a beer can and cannot require you to prove otherwise.
If they had stopped making loud noises by the time the cops had shown up, it was hearsay, and the cops would have to make a choice to enter based off what they saw/heard at that point. If they were making loud noises, the officers should be able to tell that the noises where not duress and should not have entered, or thought it was still duress and would have to pass it by a judge in order to get a search warrant.
| quote: | | "While loud sex may have been a plausible source of screaming" |
This should have removed probable cause for something illegal imo.
However, he made a couple mistakes:
| quote: | | When he was asked for identification, he went upstairs to retrieve it and "did not object when a trooper followed him." |
It is unclear whether or not the officer asked to follow him, but they usually do. He should have refused entry at that point. The entry into the house was not about loud noises at this point, as they were not searching the house and the only entry into the house came from the officer following the man for his identification.
I think the ruling in this case was specific to this case and that it was based on the fact that he allowed them in. I am pretty sure they would have had no basis to be there and ended up not being able to search his house if he had not agreed to the officer entering the house.
Basically they entered the house with permission from him and not from a search warrant for "screaming" and so his appeal failed. I'm sure it would have been a different outcome had he refused entry into his house.
My $0.02, I have been looking into the 4th amendment a lot lately, but am no expert and have no authority in my interpretation of the law. |
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| Lomeli |
| quote: | Originally posted by zerotonin79
the only injustice is 10 ing years for growing pot.
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| DJ IDeaL |
| leave it to NJ... thats why I love Cali |
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| HotDogWater |
| dude must have been high letting the trooper follow him in when he had his stuff out/visible |
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