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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.
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 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."
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