Loud Sex Enough for Cops to Search Your Home, Court Rules

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

On Feb. 17, 2007, New Jersey state troopers arrived at McGacken’s home, responding to an anonymous 911 call complaining of screams coming from McGacken’s home. McGacken explained the noise was a bout of loud sex; his girlfriend appeared at the front door and corroborated his claim.

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 rulingĀ stated in part:

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 theĀ 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.”

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 is serving a 10-year sentence with no possibility of parole for 39 months.

– Article from Raw Story.



  1. The Balleehoo on

    Not sure that would stand here. You certainly wouldn’t get 10 yrs. for 1/2 lb. and some shrubs!
    I just don’t understand how that equates to that kind of sentence, really.


    Albert Einstein once said ……”The definition of insanity is doing the same thing over and over again and expecting different results”. …

    So, in closing. I think we can all agree, the war on drugs is ”insane”.

  2. Dave on

    If Judges were not elected they would not be so pliable. Like politicians they will do and say anything to get re-elected!

  3. Anonymous on

    An anonymous call can be made from any where by anyone, especially when they don’t have a legitimate reason to invade your home.
    I had the same thing happen to me once, the only difference is no one was in my apartment when I arrived there were two officers at the door saying somebody called from inside, anybody can make up a lie, it happens to be more credible when the person is wearing a badge, hopefully he really enjoyed that nut.

  4. Douglas A. Willinger on

    I say free the man, give him a cash settlement for his entirely justifiable civil right s claim and give his sentencing judge that sentence.

    The Constitution is not safe when Judges are free to violate it.

    Make judges accountable by having them serve out the drug ‘law’ violation sentences they have given out.

    Only then will the courts regain any semblence of respectability.

  5. Interested Observer on

    This guy’s big mistake was co-operating with th police in the first place. If you have drugs, you should never open your door to the cops. Deny everything and make them bust the door down. If they have to work that hard, they probably won’t bother.

  6. Anonymous on

    Thank you New Jersey state for such progressive laws regarding marijuana.
    You are not California and it shows !

  7. Anonymously Yours on

    A ten year sentence for fifteen cannabis plants – under one light, I’m guessing – and the small quantity indicative of personal consumption is pretty bloody appalling! What are these sadistic, draconian lawmakers and judges thinking? They’re completely out of touch with public sentiment.

  8. Anonymous on

    did you say luck or fuck?

  9. Anonymous on

    well i hope they let him finish! terrible luck…

  10. Anonymous on

    well i hope they let him finish! terrible luck…