Law Lessons from STATE OF NEW JERSEY V. BRIAN McGACKEN, App. Div., A-4527-08T4, March 15, 2010:

In this case, at about 7:30 p.m. on February 17, 2007, State Police dispatch received an anonymous 911 call reporting loud screaming coming from defendant’s residence. State Police troopers responded to the call. 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.

One of the troopers asked to see identification. Defendant said that his identification was upstairs in his bedroom, and the trooper told him to get it. As defendant walked to the stairs, the trooper followed. Defendant expressed no objection. Walking up the stairs, the trooper smelled the odor of raw marijuana.

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.

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.

The Police seized fifteen growing marijuana plants, loose or bagged marijuana, and various equipment and paraphernalia for growing and distributing marijuana.

Defendant was sentenced to ten years in prison with thirty-nine months to be served without parole.

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.

Here, the screaming, confirmed by the police to have occurred, gave them 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.

Trial courts must consider “the competing values at stake” in each particular case, “the privacy interests of the home versus the interest in acting promptly to render potentially life-saving assistance to a person who may be incapacitated.” Id. at 605. The Court also recognized that hindsight might prove to be distorting, and the conduct of the police must be judged with an understanding that they must act “in the heat of the moment . . . without the luxury of time for calm reflection or sustained deliberation.” Id. at 599.

The police are not required to accept the explanation that a person answering the door gives for a distress call. Id. at 609. 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.

The potential for harm was too severe for the police to accept an explanation for loud screaming that could as well have been a cover-up of its true source. The police intrusion here was for the reasonable purpose of confirming that no other person was in the home and in need of aid. “Courts are loath to second-guess decisions made in good faith with the intent of protecting life . . . .” Ibid.

NOTE: This Blog/Blawg, NJ Family Issues, is managed by Paul G. Kostro, Esq., an attorney/lawyer/mediator in Linden, Union County, New Jersey.

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