| Graphic: Blogs 4 Common Sense |
For a New Jersey man, an evening of loud sex has resulted in a 10-year prison sentence for growing marijuana.
On February 17, 2007, New Jersey state troopers arrived at the home of Brian McGacken of Farmingdale, N.J., responding to an anonymous 911 call complaining of screams coming from McGacken’s home, reports Daniel Tencer at The Raw Story.
McGacken answered the door and explained that he’d just been having loud sex; his girlfriend appeared at the front door and backed up his claim.
But officers searched the home anyway, and found enough marijuana — including growing plants — to put McGacken away for 10 years on charges of producing a controlled substance.
McGacken appealed the conviction, arguing that once police officers knew the noise was due to consensual sex, they no longer had reason to search his home or to even be there.
But the appellate panel at Superior Court of New Jersey didn’t see it that way.
On Monday, the court dismissed McGacken’s appeal, ruling “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 is true source.”
“The police are not required to accept the explanation that a person answering the door gives for a distress call,” the court ruled. “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,” the court ruled. “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.”
According to Law.com, McGacken took inadequate initial 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 counch,” Law.com reports. “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,” Law.com reports. “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 now serving a prison sentence of 10 years with no possibility of parole for 39 months.
Something to remember: Never, EVER consent to a search. It will NOT make things “go easier,” except for the cops. Never, EVER allow police officers to enter your home without a warrant.