Loud sex was reason enough for search that turned up pot, judges say

A neighbor who reported hearing screams coming from the house gave police probable cause to determine whether anyone there needed help — even after the homeowner and his girlfriend assured them their cries were of ecstasy, passion and not pain, the judges ruled.

Brian McGaken answered the door in a bathrobe the night of Feb. 17, 2007, court documents show. He invited them in and, at their request, called for his girlfriend, who came downstairs wearing only a towel.

One of the troopers asked for ID. To ensure his and his partner’s safety, and to be sure no one else needed help, Trooper Thomas Holmes testified, he followed McGacken to his upstairs bedroom.

That’s when he said he smelled the odor of raw pot.

In the bedroom Holmes found pot plants growing, along with bagged and loose marijuana. He arrested McGacken, and troopers seized 15 growing marijuana plants, 12.5 ounces of loose or bagged marijuana, and various equipment and paraphernalia for growing and distributing the drug.

McGacken, of Monmouth County, was later sentenced to ten years in prison with 39 months to be served without parole, under a plea agreement. His lawyers also tried to have the entire process overturned, claiming the search was illegal.

The appeals judges disagreed, noting that “certain” circumstances make a warrantless search reasonable. In this case, the purpose was “protecting or preserving life, or preventing serious injury,” they said.

Ironically, the judges also noted that the judge’s conduct must be considered in light of the fact that they often must act “in the heat of the moment … without the luxury of time for calm reflection or sustained deliberation.”

As a result, the law doesn’t require them to accept the explanation that a person answering the door gives for a distress call.

In this particular case, “[t]he potential for harm was too severe for the police to accept an explanation for loud screaming that could as well have been a cover-up of its true source. The police intrusion here was for the reasonable purpose of confirming that no other person was in the home and in need of aid.”

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