Having Too Much Fun: Really
 Loud Sex Leads to Really Long Prison Term

By Charles Toutant
New Jersey Law Journal
New York Lawyer
February 17, 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.

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 to 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 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 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," said Ansell, of Ansell Zaro Grimm & Aaron in Ocean, N.J.

Paul Loriquet, a spokesman for the Attorney General's Office, said 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 said. "Their brief welfare check inside the house was totally reasonable, and this was the right result."

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