Loud Sex Justified Warrantless Search That Led to Drug Bust, Says Court

[FreeMan]

I have noticed during sex... at least the way I do it, the loudest noises are that slapping flesh. You have the sort of slushy sound with a loud suction and then the actual slap. That and the head board hitting the wall. I mean I have been in homes where that sound resonates throughout. Sure you hear the moaning, pleading and love yous, but the slapping flesh is unmistakable.

Obviously you've never bagged a chick like this -->
http://www.youtube.com/watch?v=B2m23bbsWsU&feature=related

It's an experience boys, trust me.

 

[DogBoy]

He shoulda sent his missus to get the ID and held the door. Never entrust your security to another, ALWAYS guard the door and sent another to do your running about.

Never, in any situation become a refugee! Ever seen a happy refugee? Your door, guard it!

 

[!!!]

There are details missing from the story. Nobody gets 10 years for 15 plants and 13oz, unless they're in Texas.

Guy likely had a bad record..

As for the cops, they did nothing wrong here. They responded to an SOS (scream) and the defendant confirmed that there was screaming. I'd consider this police department incompetent if they DID NOT search the house. If I was killing somebody in my basement, I wouldn't necessarily open my door to police and SAY I was doing so, and that's why cops need to respond promptly and vigilantly to calls like this.

The guy, on the other hand, made far too many mistakes. He's the type that shouldn't have been growing or committing any crime. How do you commit a crime if you're not familiar with the laws and your rights? Ridiculous.

I read this story a few days ago so there might have been updates (none when I checked though), but the guy:

Admitted that there was screaming.
Let them into the home.
Let the officer follow him upstairs.
Admitted he had Cannabis, which as much as I love, is actually still a federal and state crime.
He had no odor control.
He did not put the plants and weed away (WTF?)
He didn't tell his GF to STFU.

He did EVERYTHING wrong. I'm surprised some people are siding with him and not the cops on this.

All would have been prevented had he NOT opened the door.

 

[Bazarocka]

Dam what a bummer, but he was an idiot. To Bad he has too learn the hard way. (He musta been a better lover than a cultivator)

I once held um off after being ratted out. The dumb shits showed up at my front door W/O their stupid fucking warrant, thinking I was gonna just let them in. They said "we can get a warrant in 20 minutes" O.k I say, GET IT. I remember the leo that stuck his foot in my front door, my 3 pits were going apeshit. "I told him, my dogs are not secure, I HAVE TO SHUT THE DOOR". I shut the door, and YOU AINT never seen somebody pull an aero 36 in mid veg down so quick. I look back now, it was funny as shit. I was tearing shit down, stuffing erb in lawn leaf bags and running out back, and throwing it ALL up on THE ROOF. (ISHITYOUNOT)~~~It takes the leos 40 minutes to get their warrant~~~. The VERY last bag of shit that I throw up on the roof, I thru so fuking hard,,,It scared the shit out of me,,,,because I thought I threw it UP and OVER the top of the roof and it would have FELL right in their faces., It didn't. Not to make this ANY longer,,,,to this day. I can't believe I got OUT of that one.

 

[J. Greenstein]

There are details missing from the story. Nobody gets 10 years for 15 plants and 13oz, unless they're in Texas.

Guy likely had a bad record..

As for the cops, they did nothing wrong here. They responded to an SOS (scream) and the defendant confirmed that there was screaming. I'd consider this police department incompetent if they DID NOT search the house. If I was killing somebody in my basement, I wouldn't necessarily open my door to police and SAY I was doing so, and that's why cops need to respond promptly and vigilantly to calls like this.

The guy, on the other hand, made far too many mistakes. He's the type that shouldn't have been growing or committing any crime. How do you commit a crime if you're not familiar with the laws and your rights? Ridiculous.

I read this story a few days ago so there might have been updates (none when I checked though), but the guy:

Admitted that there was screaming.
Let them into the home.
Let the officer follow him upstairs.
Admitted he had Cannabis, which as much as I love, is actually still a federal and state crime.
He had no odor control.
He did not put the plants and weed away (WTF?)
He didn't tell his GF to STFU.

He did EVERYTHING wrong. I'm surprised some people are siding with him and not the cops on this.

All would have been prevented had he NOT opened the door.

What if he did NOT open the door...and the cops broke in...would the charges still stick?

 

[OrganicMonkey]

I've heard of someone that had cops break in because an alarm went off. They tend to side in their mind with situations of law abiding citizens that are referent of them.

 

[usda101]

fucking ten year sentence for not even a POUND?? holy fuck shit like this makes me wanna dust the rifles off and fight the system...thats a stiff sentence for only 12 ounces

I'll bring the extra clips... never let the cops in your house even if u have nothing to hide.

 

[FreeMan]

A former associate ended up getting found out by LEO due to an attempted robbery at his grow. A crew rolled in and had him all tied up with machete's flailing and his neighbour called the police after hearing the break-in, then the commotion. LEO burst in to find him tied up and caught the crew red handed... obviously found his grow as well, and it was pretty substantial in size. They didn't even press charges against him. Not sure if this was a technicality thing or whether they just felt sorry for him.

 

[~fvk~]

Was your neighbor a woman? I can't see a guy calling the cops. A guy turns up the TV. It has to be a woman cause they can't stand the though of another woman having a good time.

It's okay man, we understand. Some dude's just know what it feels like to be a woman, not that there's anything wrong with that, right?

 

[est1977]

lmao at the last post and i like the one about the fetish growers using ball gags (HE HE HE ) IRONICALLY ENOUGH I'M PLANNING ON MOVING TO NJ FROM CALI ....Maybe not lol....

 

[resinryder]

A report of screams coming from your abode constitutes a domestic violence call. With domestic violence they will come in your residence whether you approve or not to either find the injured party or to clear the property. No warrant needed and you will be detained if your deny them entry. You have no options to deny entry like it or not. If they find evidence of any other illegal activities during the search for the violated party you will be charged. They are not gonna turn a blind eye to any illegal activity. Domestic violence laws will bite you quicker than most others.

 

[SOTF420]

As far as I know, that is IF there is an eye witness to violence involving you or someone in your house present to make a statement to allow them forcible entry OR the distress call originates from inside your residence. If you are questioned about screaming or yelling ever coming from your house/apt. the only right way to deal with it is to deny it. No matter what it was, deny deny deny deny. Goto the door or window in a towel or robe and tell them you are in the shower/bath and cannot open the door since you are not dressed. 9 times out of 10 they are not going to pursue it any further unless there is signifigant evidence of a crime taking place. If they do force their way in your residence and find something a good lawyer most likely is going to be able to get it thrown out if there was not sufficient probable cause to begin with. A random anonymous call about noise coming from a house does not give LEO the legal right to enter your residence. In this case mentioned in the thread as well as 99% of others, it's YOU who allows them entry. Or hopefully, does not.

 

[ItsGrowTime]

Here's a great commentary on the case. Put aside all of the backseat lawyer opinions on this thread and read this!

http://stopthedrugwar.org/chronicle/625/john_calvin_jones_brian_mcgacken_new_jersey_marijuana_bust

What Not To Do If You're Growing MJ and Police Visit You

by John Calvin Jones, professor of law, American University in Bosnia and Hercegovina

[Editor's Note: Last week we reviewed Flex Your Rights' new video, "10 Rules for Dealing with Police." Coincidentally, this piece from law professor John Calvin Jones came in over the transom at the same time. Like Flex Your Rights, Jones, too, is attempting to educate Americans about how to effectively exercise their constitutional rights -- and what can happen to you when you fail to do so. Jones' rules are a little different from Flex Your Rights' "10 Rules," but both are saying essentially the same thing. Here we present Jones' analysis of the case of one New Jersey man and what happened to him when he failed to exercise his rights.]

The latest case of a naïve marijuana grower comes out of New Jersey, where, on March 15, an appellate court affirmed a ruling from 2007 which denied a motion to suppress evidence: a seizure of a lot of weed from the house of one Brian McGacken. Recent headlines on Slate and other web sites emphasized why the police arrived at McGacken's house in the first place -- apparently he and his girlfriend were loud while having sex -- so loud that police received an "anonymous 911 call." Having the police come to your home because of loud sex could lead to amusing anecdotes down the years, but it is doubtful McGacken is finding anything to laugh about.

Instead, we have a scenario where police enter the house, follow McGacken upstairs (without being invited), smell pot, then start asking questions, and well, we know the rest. Before reviewing the legal arguments and ultimate ruling of two New Jersey Appellate Division judges (Lihotz and Ashrafi) in New Jersey v. McGacken, let me start with the errors of Brian McGacken.

According to the opinion, as admitted by McGacken, when police arrived at his place to investigate the 911 call, McGacken invited the police into the foyer. Rule #1: If you are growing any plants, much less have any weed in your domicile, do not invite the police inside. Then, after McGacken explained that any reports of screaming were accurate -- as then confirmed by his sex partner, police asked McGacken for ID. Rule #2: If you are growing weed in your house, speak to the police as little as possible. And since the Supreme Court ruling in Hiibel v. Nevada, 542 U.S. 177 (2004), unless you live in one of 20 states that have a law requiring you to identify yourself, which NJ does not, then you do not need to say anything to the police. That is, it is not a crime to refuse to answer or ID yourself -- even the Appellate Court in McGacken's case noted that. Regardless, if you do live in one of those self-ID states, just give your full name -- do not lie -- and then say nothing more.

By the way, the Supreme Court qualified the issue of ID laws in Hiibel, noting that one must identify only when police say that they have reason to believe that a person is suspected of committing a crime. If you ask the police if you are suspected of a crime, and they say no, as was the case with McGacken, not only are you not required to show ID, but you should then apply Rule #3: Always ask the police, "Am I free to leave?" If they say "no," but are still in your house -- tell them to leave, that you do not consent to their presence or search, and get the phone and tell them that you are calling your lawyer. (The reason you say that you are calling a lawyer is two-fold: first, it puts the cops on notice that they should go harass someone else; and second, while they will tell you that you cannot use the phone, they know that one can always have counsel present while in custody -- so you can surely have advice of counsel when you are not in custody). Of course, you do not have to call any real lawyer, just call your own voicemail and make a recording of the events in a loud voice saying stuff like: "The police are in my house/apartment without a warrant and no probable cause, they are not invited, I have asked them to leave, I do not consent to any search, etc." If after all that, the police still do not leave, just sit there -- and be quiet.

Needless to say, McGacken did not follow rules #2 or #3 either. But, according to the court opinion -- McGacken admitted he went upstairs to get his ID, and was followed by New Jersey State Trooper Thomas Holmes.

According to the opinion, "Trooper Holmes 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." But did he really?

Earlier in the opinion, the judges wrote that:

"Trooper Thomas Holmes and a fellow trooper responded [to the 911 call]. [Once on the scene, they] heard and saw nothing unusual from outside the residence. They knocked on the door and announced that they were the State Police. Within a reasonable time, defendant opened the door dressed only in a bathrobe. Otherwise, defendant's demeanor and conduct were normal, and he was completely cooperative. When told about the report of screaming, defendant invited the troopers to step inside and explained that the screaming came during loud sex with his girlfriend. The troopers asked to talk to the girlfriend. She came from upstairs wearing only a towel and confirmed defendant's explanation."

If the two occupants of the house said that they are the only two in the house, and the officers believe them, then there is no reason to make sure there is no one else in the house "in need of aid." Further, if the police accept the explanation for the screaming, and the police are ready to end a routine follow-up to an unnecessary 911 call, then there is no reason to suspect that Trooper Holmes or his fellow trooper would be at risk from the sex screamers. But if the police thought that McGacken was lying or acting suspicious, then there might be cause to keep an eye on McGacken. But, according to the ruling, that's not what police thought.

"No evidence suggested [that] the police had any suspicion of criminal activity by defendant or his girlfriend, or [that the police] wished to conduct a search for evidence of crime. Trooper Holmes testified that... nothing that defendant and his girlfriend did or said downstairs raised suspicion of criminal activity."

The police and the court admit that Trooper Holmes lied when he testified there was no suspicion of criminal behavior. He could not have believed the report of the two lovers, but still had cause to look around to see if someone were in need of assistance. And thus, because he did not believe their explanation, Holmes implied that the two were hindering or obstructing an investigation, an arrestable offense.

But as the court recognizes that Holmes declared that he had no suspicions, that means Holmes believed no one else was in the house -- therefore there was no need to go upstairs in the name of what the court references as an exigent circumstance, of the sort where police may enter a house without a warrant so as to preserve life or prevent serious injury. Again, because Trooper Holmes testified that he had no suspicions that McGacken and his girlfriend were lying, he had no basis to justify a warrantless intrusion.

But that's not how the appeals court ruled. The New Jersey judges referred, over and over, to the idea of this type of warrantless search as necessary to save lives -- and not search for evidence of a crime. So, what did Trooper Holmes do and see when reaching the upstairs bedroom with McGacken? First the court says that Holmes smelled marijuana.

What happened next for this Trooper -- who was not searching for evidence of a crime, but merely responding to a perceived exigency to save a life? According to the court:

"Upstairs, Trooper Holmes saw defendant use his foot to push a tray under a couch. [Holmes] asked defendant what was on the tray, and defendant soon admitted that the tray contained marijuana. In defendant's bedroom, the trooper saw, in plain view, a number of growing marijuana plants, as well as bagged and loose marijuana. He placed defendant under arrest."

Thus, two New Jersey Appellate Court judges decided to abandon all pretense of reason. Without comment they claim that Holmes had to go upstairs to find someone to rescue, though he did not suspect anyone was in need of aid.

McGacken's misadventure leads us to yet another rule, Rule #4: When police ask you something, do not answer. Police are not your friends. They use drug arrests -- the easy pickings -- to gain fame (for some reason local press usually lauds these cops) and fortune. All states and the federal governments have seizure laws that allow law enforcement to take cars, houses, bank accounts, and boats on the mere suspicion that you are engaged in drug-related criminal activity. You can even be acquitted or have charges dropped, yet the cops can keep your stuff.

But more importantly, getting back to Rule #4 and anything related to a search of your person, house, car, or stuff, note what the court did not report that Holmes did after seeing McGacken move the tray? The police officer did not go over and grab the tray. Even though the court said that Holmes was within his right to make a warrantless search given the exigent circumstance of trying to save someone in imminent harm -- and not intending to seize evidence or make an arrest, Holmes did not even try.

Because the tray was not in plain view -- it was hidden under the couch -- and Holmes did not have probable cause to search without a warrant, the cop relied on the tried and true method to collect evidence and make an arrest: a confession. That leads to Rule #5: Never consent to a search. Because the tray was not in plain view -- it was hidden under the couch -- and Holmes did not have probable cause to search without a warrant, the cop relied on the tried and true method to collect evidence and make an arrest: a confession! That is why you are not supposed to answer their questions -- just call the lawyer (see Rule #3 above).

Holmes was careful to say that in no way did he look under the couch to see what was on the tray. However, Holmes testified, and the court explained, that the seized marijuana plants were "in plain view" (meaning not in a closed space, drawer, etc.). Even Trooper Holmes knows Rule #6: If it is in plain view, it belongs to the police, not you!

This exercise in legal sophistry and hypocrisy is not to advocate that anyone should violate state or federal laws -- especially drug laws. Instead it should serve to emphasize that every person should know the limits, guidelines, and rules on constitutional provisions about search and seizure. Even in those states that allow licensed grow operations the Obama administration is still making busts. If you want to stay out of prison, or reduce your chances of getting busted, follow the general advice of The Clash and "know your rights."

 

[J. Greenstein]

^^^ That was a great read thanks for posting it. It still doesn't answer something for me. If the poor chap had chosen to not answer the door, would the popo not have the right to break it down and enter ?(they can do that if they feel someone is in danger) and things would have turned out just the same once they came inside the house, invited or not???

 

[SOTF420]

No, they only came in the house and upstairs because he allowed them to.
He could have spoke to them through the window or door, most likely they would have been pissed off that they could not enter but eventually with no evidence of a crime taking place they would have to leave & would not have a right to forceful entry. IMO

 

[rezinrebel]

Moral of the story

GAG THE GIRLFRIEND DURING SEX !


Stay safe all . BGB

 

[asstastic]

if cops ever show up at your hose even if your 1000000% legal go outside to talk to them and shut the door behind you works a charm if you need somthing say ill be right back and shut them out its your fucking house ill get all crazy on cops for fucking with my rights

cops showed up 1 time and i was taking a bong in a shirt into my house and i turned around and stupidly sat the bong in a chair on the deck than went inside real quick and when i came back out the cops said it smelled like weed in my house and ive never smoked in my house in my life so i said hell no aint me any way moral of the story they say the bong but did not ask to see it so they took a shot in the dark and tried to get me to incriminate myself i did not notice why they said it smelled of weed till they left and i could tell they looked at my bong and the stem came out
now that was scary
p/s what a dumb ass for not knowing your rights