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The “Loud Sex” Exception to the Warrant Requirement?

The New Jersey Appellate Division may have adopted a new exception to the warrant requirement - the "loud sex" exception.  Under both the federal constitution and the New Jersey state constitution, citizens have the right to be free from unlawful searches and seizures.  Normally, government officials, including police, are required to obtain a warrant before they can perform a search; however, under certain limited circumstances, police officers may be able to dispense with the warrant requirement.  Some well known exceptions to the warrant requirement include the automobile exception, the search incident to arrest exception, the community caretaker exception, and the inventory search exception.  In the case of State v. McGacken, the New Jersey Appellate Division may have created a new exception: the "loud sex" exception.

In State v. McGacken, the State Police received an anonymous phone call that loud screaming was heard coming from defendant's home in Farmingdale, New Jersey.  Two troopers responded to the call.  When they appeared at the house, they could not see or hear anything unusual from outside.  They knocked on the door and defendant responded to the knock, within a reasonable time, dressed only in a bathrobe.  When defendant was asked about the screaming, he told troopers that the screaming came during loud sex with his girlfriend.  The troopers then asked to speak to the girlfriend, who came downstairs and confirmed defendant's explanation that the screaming was a result of loud sex.

Defendant was then asked to produce identification.  After advising the trooper that his identification was in the bedroom, defendant was told by the trooper to retrieve his identification.  The trooper followed defendant to the bedroom and at that time smelled the odor of raw marijuana.  When they reached the upstairs of the house, the trooper spotted defendant pushing a tray under the couch with his foot.  The trooper started questioning defendant about what was on the tray, and defendant soon admitted that it was marijuana.  In the bedroom, the trooper found more marijuana as well as a marijuana growing tree.  Defendant was charged with various drug possession and drug distribution charges, as well as a first degree charge of maintaining or operating a facility for the production of a controlled dangerous substance.

The trooper who followed defendant upstairs testified that he followed the defendant for two reasons: (1) for his own safety, and (2) to make sure that there was no other person in the home in need of aid.   There was no evidence to suggest any criminal activity on the part of defendant or his girlfriend.   Defendant argued that the troopers did not have an unfettered right to search his home after he and his girlfriend gave plausible explanations for the screaming. 

The Appellate Division approved the search in this case under the "emergency aid" exception to the warrant requirement.  This 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 life, or preventing serious injury."  Three elements must be met for the exception to apply: (1) there must be an objectively reasonable basis to believe that an emergency requires immediate assistance to protect life 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 searched.   In this case, defendant argued that the police did not have an objectively reasonable basis to believe there was an emergency.  However, the Court disagreed and found that the loud screaming gave the police an objectively reasonable basis to perform a limited investigation.  Therefore, the search was upheld.

This case illustrates that the application of an exception to the search warrant requirement is very fact sensitive.  Therefore, a very careful investigation and analysis of the particular facts of a case is required to determine how police will justify a search and how best to combat those arguments.  Anyone charged with a crime in New Jersey should contact a New Jersey criminal defense lawyer for representation.