Loud sex enough for cops to search your home, court rules

[Cinderella]

For Brian McGacken of Farmingdale, New Jersey, an evening of loud sex resulted in a 10-year prison sentence for growing marijuana.

link : http://rawstory.com/2010/03/loud-sex-cops-search-home/

More proof that our homes are really not our castles anymore and are meant for very limited use. This latest bit of constitutional desecration comes to us from New Jersey where two lovers enjoying some obviously heated moments of passion find the Gestapo at their door.

Despite assurances that all was well from both parties the police insisted on searching the home and the Judge held up the search as being constitutional.

Now because of some questionable indoor greenhouse farming practices the man of the house is facing 10 years in prison.

Many people will see this as a good thing, another dreaded criminal off the streets, what does it matter that the alleged crime was a victimless one, or involved simply being in possession of a naturally flowing plant provided by nature itself.

After all the Government knows better! It knows obviously when two people are apparently enjoying intimacy too much there must be something amiss in the land.

One might wonder what laws we are currently being governed by the U.S. Constitution or the far more Puritanical ones that preceded that from the Mayflower Compact?

What a country, last one out grab the flag!

[Krugerrand]

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.

This seems like a reasonable explanation to me. In a few moments Anti-Federalist will advise us never to call the police. I won't disagree with him. Still, I have to side with the police on this one.

[jmdrake]

Did the man actually give police permission to come in and search the home? Or did he say "Go away and come back when you have a warrant. My neighbors are idiots". Once the police were in the house the "plain view" and "plain smell" doctrines kicked in.

[Cinderella]

They had a legal right to be there. The problem is, did they have a legal right to take the investigation further, and if so, what were the requirements to do so? The police talked to both people but were not satisfied with the answers, so the question is, why were they not satisfied and what led them to investigate further?

Anyway, I think the police asked if they could come in, he said "sure" and from there it was on. He should have told them to wait, should have closed the door, or should have told his GF to go get his I.D.

[Krugerrand]

Anyway, I think the police asked if they could come in, he said "sure" and from there it was on. He should have told them to wait, should have closed the door, or should have told his GF to go get his I.D.

That would have been good advice.

[noxagol]

http://mowabb.com/aimages/images/2005/05-07-05.jpg

[SelfTaught]

Doesn't Matt Collins have a problem with fornicating neighbors?

Well, here's how you get back at them. Plant drugs in their apartment and call the cops next time you hear them fuck.

[amy31416]

http://mowabb.com/aimages/images/2005/05-07-05.jpg

Holy crap, I love that!

[jmdrake]

Yeah. That was the point I was trying to make. If he said "Sure, come on in" and he had marijuana in "plain sight" or "plain smell" then under the current rules he had no case. If the police forced themselves in after he gave a reasonable explanation of the noise, that's another matter altogether. This reminds me of the Professor Gates arrest. (Black Harvard professor in the news a while back). That was also a case of the police investigating a 911 call that turned to be faulty. Flashback to Judge Napolitano's commentary on that case.

YouTube - Judge Napolitanos Verdict Arrest of Professor Gates was Unconstitutional and False Arrest (http://www.youtube.com/watch?v=BcziXHZUG-k)

The homeowner in this case should have said "This is ridiculous. All you have is some bogus 911 call from my jerk neighbor. I'm not giving you permission to come in. Come back when you have a warrant." Maybe the police would have forced their way in anyway. (Maybe they did. I can't tell from the story posted.) But he certainly wouldn't have been any worse off taking that route.


They had a legal right to be there. The problem is, did they have a legal right to take the investigation further, and if so, what were the requirements to do so? The police talked to both people but were not satisfied with the answers, so the question is, why were they not satisfied and what led them to investigate further?

Anyway, I think the police asked if they could come in, he said "sure" and from there it was on. He should have told them to wait, should have closed the door, or should have told his GF to go get his I.D.

[Krugerrand]

The homeowner in this case should have said "This is ridiculous. All you have is some bogus 911 call from my jerk neighbor. I'm not giving you permission to come in. Come back when you have a warrant." Maybe the police would have forced their way in anyway. (Maybe they did. I can't tell from the story posted.) But he certainly wouldn't have been any worse off taking that route.

Except that if the police have reason to believe somebody is being harmed, they would not need a warrant.

That's why I like Cindarella's advice - simply show identification that you live at the residence and that state that all is well. Then state that they do not have permission to enter. I think it's important that you make some effort to establish that you have authority to assert that there is no alarm. Otherwise, your attacker could simply state that case for you.

[RedStripe]

I hope that neighbor feels terrible.

[Krugerrand]

I would add that emergency searches such as this should not be allowed when the 911 tip is anonymous. It makes it too easy for the police chief to be the make the 911 call.

[Danke]

I hope that neighbor feels terrible.

Probably feels great now that he is getting undisturbed good night rests.

[Cinderella]

What happened to following the letter of the law?

No, the officer in the field, responding to a domestic call, does not get to search a residence in order to uncover unrelated criminal activity, after it is determined the residents are not in distress.

In this case, if an unwarrated search was the LEOs' interpretation of the law, then they made a faulty decision and should be reprimanded, if not outright investigated.

And, yes, I have a very good idea of what LEOs have to do in the field. I also know what they should not be doing, and interpreting the law is something they should not be doing, because it's unconstitutional.

I would propose a law calling for warrantless and unannounced searches of LEO residences on a regular basis, just to make sure they aren't growing pot or abusing their children or holding young girls prisoner. Because I guarantee you that many LEOs have dirty and illegal little secrets that go undiscovered simply because they are LEOs.

I'm just guessing that LEOs everywhere would raise hell if their privacy was violated in this manner — however, as public servants, they wouldn't really be able to do anything except obey the law.

Of course, we'll never see such a law proposed or passed into law, because it would undermine the Police State.



Below is the exact ruling by the court:

"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."

Potential harm should never be used as an adequate excuse to usurp one's Constitutional rights. By doing so, the court is opening the door to legalizing all types of unwarranted witch hunts.

[Krugerrand]

Below is the exact ruling by the court:

"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."

Potential harm should never be used as an adequate excuse to usurp one's Constitutional rights. By doing so, the court is opening the door to legalizing all types of unwarranted witch hunts.

This was more than "potential for harm." It was probably concern based on 1) 911 call [per above, I believe anonymous should not count] and 2) admission of the person answering the door that there was loud screaming.

[Pericles]

http://mowabb.com/aimages/images/2005/05-07-05.jpg

I need one of those.

[Brian4Liberty]

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.

So, is the resident lying or not? Seems that it can't be both. They went into the house on the basis that the resident told the truth about the screaming, but was lying about the reason for the screaming. So officers and the court get to pick and choose what is true based on what is convenient for their own purposes and to defend their actions?

[Matt Collins]

///

[Matt Collins]

Well, here's how you get back at them. Plant drugs in their apartment and call the cops next time you hear them fuck.With the people that are above me, I am willing to bet drugs are already there :rolleyes:

[Live_Free_Or_Die]

http://seriouslycasual.files.wordpress.com/2009/09/no_trespassing_sign-788555.jpg

http://www.ci.manhattan-beach.ca.us/Modules/ShowImage.aspx?imageid=2620


http://mowabb.com/aimages/images/2005/05-07-05.jpg

[MelissaWV]

This is going to happen as long as police are allowed to "enter if they hear signs of distress," too. Those are my least favorite Law & Order episodes, where they pretend they hear someone calling for help, and then bust down the door. If that's allowed, 9-1-1 call or no, the cops will come barging in... and there might be zero difference between the sounds of a struggle and the sounds of sex, so it would follow they would break in during either one.

I'm going to soundproof my house whenever I build one, I swear. :mad:

[ARealConservative]

This seems like a reasonable explanation to me. In a few moments Anti-Federalist will advise us never to call the police. I won't disagree with him. Still, I have to side with the police on this one.

the problem though, is unless the police are claiming that the mj plants were screaming, this should not be an arrestable offense.

They may of had probable cause to search the home to find the source of the screams, but that is it.

[MelissaWV]

the problem though, is unless the police are claiming that the mj plants were screaming, this should not be an arrestable offense.

They may of had probable cause to search the home to find the source of the screams, but that is it.

Once something is in plain "sense" (sight, sound, smell, etc.) the police can make a case for it. :(

[ARealConservative]

Once something is in plain "sense" (sight, sound, smell, etc.) the police can make a case for it. :(

They can certainly try.

Once it was found that they entered the house on false pretense, I don't care what they see, hear, or smell after. I consider it inadmissible evidence.

But it is certainly a gray area

[Krugerrand]

Once something is in plain "sense" (sight, sound, smell, etc.) the police can make a case for it. :(

I'm not so opposed to that concept. I think we in these parts have sympathy for them because there's no justification for outlawing the marijuana in the first place. I think there would be less sympathy if once in there the police found something like child porn all over the walls.

[ARealConservative]

I'm not so opposed to that concept. I think we in these parts have sympathy for them because there's no justification for outlawing the marijuana in the first place. I think there would be less sympathy if once in there the police found something like child porn all over the walls.

I would have less sympathy, but still consider it inadmissible evidence.

[Cinderella]

He should have pre-negotiated the scope of the search. If they were concerned about others being in the house under captivity or distreess he should have made the Officers sign a quid pro quo agreement allowing them to search the home but only for those things.

They could have confiscated the Marijuana if it was in plain site but they could not have charged him.

Chances are the Warrant would have limited the search in a similar way so the cops would have been happy to take that deal if they were truly interested in just seeing that the home was a secure and safe environment for anyone inside.

However without a legitimate complainant they really had no grounds to search the home. At most the neighbor could have claimed noise ordinances were being exceeded which is hard to measure the decibel level of and certainly doesn’t warrant a search of the home.

Had he refused to let them search the house chances are that they would have just waited outside the house for the warrant prohibiting him from removing anything from the house?

Chances are who ever called in the complaint shared another few choice tidbits with the police to arouse their suspicion…”And he drives a motor cycle and has tattoos and his eyes are always red and his sheep are always scared!”.

I hope that this guy takes this to an appellate court and all the way up the line to the Supreme Court if need be.

This is not right!

[Krugerrand]

I would have less sympathy, but still consider it inadmissible evidence.

Perhaps in a situation like that, it would be better if the police then had to request a second warrant based on what they may have observed in the open during the execution of their first warrant.

[aravoth]

http://mowabb.com/aimages/images/2005/05-07-05.jpg

rofl

[UtahApocalypse]

HE INVITED THE OFFICER IN!!!

That is the ONLY thing that matters.

[charrob]

The problem, as i see it, is twofold.
1) that an anonymous call allows the police to enter your home.
2) that once in the home police can charge you with unrelated crimes.
---------------------------------------------------------------------------------------------

Although i recognize #2, my problem is with #1. Because virtually if your neighbor (or anyone else for that matter since this is anonymous) doesn't like you, they can call 911 and say anything to harass you. I shared the same anger at the Henry Louis Gates situation (even writing to his website that this was a civil liberties issue not a race issue. And I'm very disappointed he never pursued this as such because a man of his stature could have made a difference in the law for all of us.)

Here's what's written from the link given on the originating post of this thread as to the law:

------------------------------------------------------------------------------------
A warrantless search of a home is “presumptively invalid” and the State has the burden of proving one of the “few specifically established and welldelineated exceptions” to the warrant requirement. Id. at 598 (quoting Mincey v. Arizona, 437 U.S. 385, 390, 98 S. Ct. 2408, 2412, 57 L. Ed. 2d 290, 298-99 (1978)).

Exceptions to the warrant requirement “are based on the recognition that under certain exigent circumstances a search without a warrant is both reasonable and necessary.” Ibid. (citing Chimel v. California, 395 U.S. 752, 762-64, 89 S. Ct. 2034, 2039-41, 23 L. Ed. 2d 685, 694-95 (1969); Terry v. Ohio, 392 U.S. 1, 29-31, 88 S. Ct. 1868, 1884, 20 L. Ed. 2d 889, 911 (1968)).

The emergency aid exception “is derived from the commonsense understanding that exigent circumstances may require public safety officials, such as the police, firefighters, or paramedics, to enter a dwelling without a warrant for the purpose of protecting or preserving life, or preventing serious injury.” State v. Frankel, 179 N.J. 586, 598, cert. denied, 543 U.S. 876, 125 S. Ct. 108, 160 L. Ed. 2d 128 (2004). A three-prong test must be satisfied for the police to enter a home without a warrant under the emergency aid exception: (1) “an objectively reasonable basis to believe that an emergency or prevent serious injury[,]” (2) a “primary motivation” of the police “to render assistance, not to find and seize evidence[,]” and (3) “a reasonable nexus between the emergency and the area or places to be searched.” Id. at 600.
------------------------------------------------------------------------------------

imho, the law needs to be changed. These types of 911 calls need to have people identify themselves (giving name, etc.). Then police should stake out the residence until they, themselves, hear or see from the outside that foul play is occurring.

-will victims in our country get hurt from changing the law? possibly. But he who sacrifices liberty for security deserves neither.

[Danke]

Solution:

http://www.moonbattery.com/ball-gag.jpg

[UtahApocalypse]

The problem, as i see it, is twofold.
1) that an anonymous call allows the police to enter your home.
2) that once in the home police can charge you with unrelated crimes.
---------------------------------------------------------------------------------------------


Wrong. An anonymous call brought the police TO the house. The Moron that INVITED Police into his home is what let them in.

[charrob]

Wrong. An anonymous call brought the police TO the house. The Moron that INVITED Police into his home is what let them in.

agreed. However, my problem is that it wouldn't have mattered. The way the law is written, the police could have entered anyway.

for example: a new neighbor moves in; he/she doesn't like me. He/she calls 911 and claims they are hearing loud screams from my house. The police come. I tell them to go away until they have a warrant. Under the current law the police could say that this is an 'exigent' circumstance because of the 911 call, and come in anyway.

My problem is the way the law is written (ie. beyond what happened in this particular circumstance).

[kylejack]

agreed. However, my problem is that it wouldn't have mattered. The way the law is written, the police could have entered anyway.

for example: a new neighbor moves in; he/she doesn't like me. He/she calls 911 and claims they are hearing loud screams from my house. The police come. I tell them to go away until they have a warrant. Under the current law the police could say that this is an 'exigent' circumstance because of the 911 call, and come in anyway.

My problem is the way the law is written (ie. beyond what happened in this particular circumstance).
Your proposed change is ridiculous. If someone witnesses a murder (or whatever) and reports it, police should have the right to enter without having to wait around and surveil for another murder.

As to exigent circumstances, a court can later decide whether or not it was reasonable for police to breach and come in or if the explanation of loud sex should have been acceptable. Furthermore, exigent circumstances only authorizes them to look in areas that could fit that screaming human, not a drawer where you hid the weed.

When police come to your door to talk, either don't open the door or open it and step outside, closing it behind you. If they attempt to enter, tell them that you do not consent to allowing them to enter your house.

[pcosmar]

Your proposed change is ridiculous. If someone witnesses a murder (or whatever) and reports it, police should have the right to enter without having to wait around and surveil for another murder.

As to exigent circumstances, a court can later decide whether or not it was reasonable for police to breach and come in or if the explanation of loud sex should have been acceptable. Furthermore, exigent circumstances only authorizes them to look in areas that could fit that screaming human, not a drawer where you hid the weed.

When police come to your door to talk, either don't open the door or open it and step outside, closing it behind you. If they attempt to enter, tell them that you do not consent to allowing them to enter your house.

Not exactly.
If someone "witnesses' a murder, then they can tell it to the judge ON THE RECORD. The judge then signs a warrant for search.
The Police should have no possible access without a legally signed warrant. They should not even attempt to try without one.

anonymous tips should have no value whatsoever. ever.

That is aside from the fact that the "police" should not exist to start with.
The county Sheriff should be the only legal local law enforcement.

[charrob]

Your proposed change is ridiculous. If someone witnesses a murder (or whatever) and reports it, police should have the right to enter without having to wait around and surveil for another murder.

As to exigent circumstances, a court can later decide whether or not it was reasonable for police to breach and come in or if the explanation of loud sex should have been acceptable. Furthermore, exigent circumstances only authorizes them to look in areas that could fit that screaming human, not a drawer where you hid the weed.

When police come to your door to talk, either don't open the door or open it and step outside, closing it behind you. If they attempt to enter, tell them that you do not consent to allowing them to enter your house.

in both cases (this and henry louis gates) police stated they followed the person inside when that person went to get their identity because they feared that while getting that identity the person would come back with a gun.

in any case, the law should state that the person who made the 911 call should be present when the police arrive. if that person is not present, then credibility of their call is in question, and the police should not be allowed to enter the home without a warrant.

my worry is that this 'exigent circumstance' related to 911 calls written in the law can follow with abuse. The credibility of the 911 call is paramount.

[dannno]

Did the man actually give police permission to come in and search the home? Or did he say "Go away and come back when you have a warrant. My neighbors are idiots". Once the police were in the house the "plain view" and "plain smell" doctrines kicked in.

The loud sex was the "plain view" "plain smell" doctrine that they came in on..

[dannno]

HE INVITED THE OFFICER IN!!!

That is the ONLY thing that matters.

No, I don't think they did :rolleyes:

[charrob]

HE INVITED THE OFFICER IN!!!

That is the ONLY thing that matters.

i agree with Danno. Here's a link given from the original link given in this thread: http://www.kostrolaw.com/NJFamilyIssues/2010/03/16/police-search/


Later, the trooper testified that he followed defendant upstairs for two reasons — to protect his own and his fellow trooper’s safety and to make sure there was no other person in the home in need of aid.

This is precisely the exact same two reasons that were given by police in the henry louis gates situation. In both cases neither victim invited the police into their homes. In both cases, the police simply took it upon themselves to enter without an invitation and without a warrant.

[Anti Federalist]

This seems like a reasonable explanation to me. In a few moments Anti-Federalist will advise us never to call the police. I won't disagree with him. Still, I have to side with the police on this one.

Apologies for being so predictable.

In this case, the citizen never called the cops, so I don't know how well my advice applies in this case.

Certainly, after the fact, the citizen stepped on his dick (literally), in how he handled the cops at the door.

Lessons Learned:

Don't ever call the cops.

Limit interaction with cops if you have no choice.

Exercise your right to remain silent.

Realize, that once cops are in the equation, you have a very good chance of going to to jail or ending up dead, regardless of what the situation may be.

[Krugerrand]

Apologies for being so predictable.

In this case, the citizen never called the cops, so I don't know how well my advice applies in this case.

Certainly, after the fact, the citizen stepped on his dick (literally) after the fact, in how he handled the cops at the door.

Lessons Learned:

Don't ever call the cops.

Limit interaction with cops if you have no choice.

Exercise your right to remain silent.

Realize, that once cops are in the equation, you have a very good chance of going to to jail or ending up dead, regardless of what the situation may be.

No need to apologize. Good points are worth repeating!