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Loud Sex Justified Warrantless Search That Led to Drug Bust, Says Court

DiscoBiscuit

DiscoBiscuit

weed fiend
Veteran
Charles Toutant
New Jersey Law Journal
March 16, 2010


Screaming too loud during sex can get you or your partner arrested in New Jersey, thanks to an appeals court ruling handed down on Monday.


Affirming denial of a motion to suppress drugs found in a Farmingdale, N.J., home, the judges said the screaming reported by a neighbor gave police an objectively reasonable basis to believe that a limited investigation was necessary to determine whether anyone was in need of aid.


Even after the occupants gave a plausible explanation -- that the cries were released in the height of passion -- the potential for harm was sufficient for police to search further, the court said in State v. McGacken, A-4527-08.


Responding to an anonymous 911 call, state troopers went to Brian McGacken's home on Feb. 17, 2007, and he answered the door dressed in a bathrobe. When he explained the source of the noise, the troopers asked to speak to his girlfriend. She came downstairs wearing a towel and confirmed his explanation. Nevertheless, the troopers asked McGacken 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 moved to suppress the drug evidence, arguing that police lacked an objectively reasonable basis to invoke the emergency-aid exception to the warrant requirement, since he and his girlfriend had plausibly explained the screaming.


Monmouth County Superior Court Judge Ronald Reisner denied the motion and McGacken pleaded guilty first-degree maintaining or operating a facility for the production of a controlled dangerous substance. He was sentenced to 10 years in prison, with 39 months to be served without parole.


On Monday, Appellate Division Judges Marie Lihotz and Victor Ashrafi affirmed denial of the motion, accepting the Deputy Attorney General Hillary Horton's argument that the trooper's intrusion was justified by the police's community-caretaking role.


"The police are not required to accept the explanation that a person answering the door gives for a distress call," they wrote. The trooper "had no particular reason to disbelieve defendant and his girlfriend, but he also had experienced many instances when persons had lied to him. 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."


McGacken's lawyer, Mitchell Ansell, says he may appeal further, insisting the circumstances did not satisfy the test set out by the New Jersey Supreme Court in State v. Frankel, 179 N.J. 586 (2004), for justifying the emergency-aid exception. "There was no indicia [McGacken and his girlfriend] were lying -- not behavior, eye contact, prior history at the home," says Ansell, of Ansell, Zaro, Grimm & Aaron in Ocean, N.J.


Paul Loriquet, a spokesman for the Attorney General's Office, says he is gratified. "Here, the police weren't investigating a crime, but acting as first responders to an emergency call regarding a scream, and therefore wouldn't have been in a position to seek a search warrant once they corroborated that there was indeed screaming from inside the dwelling," he says. "Their brief welfare check inside the house was totally reasonable, and this was the right result."
http://www.law.com/jsp/article.jsp?id=1202446277497&rss=newswire
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Yes4Prop215

Yes4Prop215

Active member
Veteran
fucking ten year sentence for not even a POUND?? holy fuck shit like this makes me wanna dust the rifles off and fight the system...thats a stiff sentence for only 12 ounces
 
MarquisBlack

MarquisBlack

St. Elsewhere
Veteran
I wouldn't even have shown up to court for that shit. I woulda been ooooout.

Fuck the system, man. Can't even fuck too loud these days. Scary shit. It could happen to any one of us.

Moral of the story - NEVER call 9-11!
 
stc9357

stc9357

Member
MarquisBlack said:
I wouldn't even have shown up to court for that shit. I woulda been ooooout.

Fuck the system, man. Can't even fuck too loud these days. Scary shit. It could happen to any one of us.

Moral of the story - NEVER call 9-11!
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They didn't fucking nosy ass neighbors did, not trying to be funny but the house must have thin ass walls for that shit to happen. Anyway society gets worse everyday with dumb ass stories like this appearing in the news.
 
T

The J Man

Member
the neighbor sure has a stick up his/her ass. imagine how pathetic you'd have to be to call 911 when you overhear your neighbors gettin it on... like they really thought "hey, sounds like somebody's getting abused in there. i better call the cops so they can check it out in half an hour". BS.. too many haters out there.
 
stc9357

stc9357

Member
toastfighter2 said:
The moral of the story is don't be a dumb ass and let the cops in your house, let alone anywhere near your grow room.
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I hate to jump to conclusions but I believe this is how the exchange went, he said what he said didn't say the officer could come in when getting his ID, but allowed the door to stay open and the officer came in which was his first mistake. The second was allowing the officer to stay and then follow him throughout his household. The third finally after getting busted was to consent to a search, I would have been an asshole and made them get a warrant just because.
 
Miss Blunted

Miss Blunted

Resident Bongtender
Veteran
Was the asshole neighbor just mad that someone was getting some ass and they weren't? Fucked up!!!!
 
humble1

humble1

crazaer at overgrow 2.0
ICMag Donor
Veteran
That's NJ for ya.
Dirty from the ground up.
95% of all artificial flavorings in America come from NJ.
What are they trying to cover up?
Stank.
 
Sam the Caveman

Sam the Caveman

Good'n Greasy
Veteran
The guy obviously doesn't know in order to have rights, you have to protect and implement them.

What a sad story with resulting consequences that could have been easily averted.
 
PoopyTeaBags

PoopyTeaBags

State Liscensed Care Giver/Patient, Assistant Trai
Veteran
stc9357 said:
I hate to jump to conclusions but I believe this is how the exchange went, he said what he said didn't say the officer could come in when getting his ID, but allowed the door to stay open and the officer came in which was his first mistake. The second was allowing the officer to stay and then follow him throughout his household. The third finally after getting busted was to consent to a search, I would have been an asshole and made them get a warrant just because.
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you have to tell the officers that they are not allowed in... and half the time they still dont give a fuck... ive had cops stick there foot in front of a door so i could shut it and push there way in the house becuase there was a car parked in an obscure way in yard... at 2 in the morning... un fucking real...

police are devil they are not here to serve and protect they are a gang just like the government take your money and tell ya we are protecting you from yourself... and then throw ya in jail.. why? cause prison are now an industrial complex and people get flithy rich from our tax dollars to send people to prison for shit that they should even get in trouble for...
 
M

medfinder

nj

nj

thaouight that state has medical cannabis laws?

Whta was the NAME? MA GACKING?

mabie something else was getting done?
 
Lazyman

Lazyman

Overkill is under-rated.
Veteran
Man, a cop stuck his foot in your door? Shit, I am a big mofo and I have to slam my heavy door to get it to latch, that cop mighta lost half a foot. That kinda shit makes me wanna get violent.
 
Yes4Prop215

Yes4Prop215

Active member
Veteran
^not just the police but the court system, DAs, and dumb fuck prosecutors who continue to demonify marijuana, fuck them alll!!!
 
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