New Jersey in the Interest of J.A.

Annotate this Case

The issue before the New Jersey Supreme Court in this matter centered on the admissibility of evidence procured from a home after police officers’ warrantless entry. A man was attacked at a bus stop in Willingboro and his cell phone was stolen. He and a police officer tracked the phone’s location to a nearby house using a phone tracking application. Several officers arrived at the house, and one spotted the stolen cell phone’s case through a window. When no one responded to their knocks on the door, the officers entered the house through an unlocked window. Once inside, they performed a protective sweep to determine whether the suspect was inside, and they found defendant, J.A., then seventeen years of age, under the covers of a bed. Shortly thereafter, defendant’s mother and brother arrived home. After the officers explained their investigation, defendant’s mother consented to a search of the house, and defendant’s brother voluntarily retrieved the stolen phone. Defendant was later charged with second-degree robbery for theft of the phone. Defendant moved to suppress the evidence, arguing that the officers’ entry into his home was unconstitutional because the officers entered without a warrant and there were no circumstances that would justify an exception to the warrant requirement. The trial court denied defendant’s motion to suppress, finding that although the officers’ search procedure may have been imprudent, it was ultimately defendant’s brother - without any coercion or duress from law enforcement - who retrieved the cell phone. The Appellate Division affirmed. The Supreme Court disagreed with the appellate panel’s determination that the officers’ warrantless entry was justified by the claimed exigency faced by the officers. However, the Court agreed defendant’s brother’s actions did not constitute state action and were sufficiently attenuated from the unlawful police conduct. Because we find that the brother’s independent actions operated to preclude application of the exclusionary rule to the evidence, the Court did not reach the question of defendant’s mother’s consent to search. Accordingly, the Court modified and affirmed the judgment of the Appellate Division.

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)

State of New Jersey in the Interest of J.A. (A-38-16) (077383)

Argued January 2, 2018 -- Decided June 6, 2018

FERNANDEZ-VINA, J., writing for the Court.

In this case, the Court considers the admissibility of evidence procured from a home after police officers’
warrantless entry.

The victim was standing at a bus stop in Willingboro when he was approached by a young man in a hooded
black sweatshirt and camouflage shorts, who asked to use his cell phone. The man punched the victim in the arm,
took the phone, and ran. A Willingboro Police Officer was dispatched to meet the victim at the bus stop. The
victim explained that the phone was an Apple iPhone, which had been in a pink glittery case. The officer and the
victim used the “Find My iPhone” application to track the location of the phone. The application immediately
identified a house about three blocks from the bus stop as the phone’s whereabouts. After about two minutes, the
phone was shut off, which prevented the application from further tracking the phone’s location.

Police officers decided to secure the perimeter of the house. While performing an exterior security check,
an officer peered through a first-floor window and noticed a pink glittery phone case matching the victim’s
description on a nearby bed. At that point, the police thought that the young man who took the victim’s phone may
have been inside the house. No one responded to the officers’ several knocks on the front door. One officer found
an unlocked window on the first floor, through which he and another officer entered the house. The officers found
defendant, unarmed, upstairs in the master bedroom, lying under a blanket on the bed. The officers also found a
hooded sweatshirt and a pair of camouflage shorts nearby. The officers handcuffed defendant, brought him
downstairs, and questioned him about his knowledge of the robbery. Defendant’s family members subsequently
arrived at the house, including his older brother and mother, who lived there. The latter informed the officers that
they could search the house for the missing phone. The brother asked if the officers had found the phone, and when
they responded that they had not, he said that if it was not in defendant’s bedroom, it was probably in the younger
brother’s room. Without encouragement from the police, he went to their younger brother’s room accompanied by
an officer, found a phone, and gave it to the officer. The phone matched the victim’s description of his stolen phone.
Defendant’s mother later provided written consent to search the house.

Defendant was charged with an act that would have constituted second-degree robbery had he been an adult
at the time. He filed a motion to suppress the phone. The court held that because defendant’s brother retrieved the
phone, and because he did not act as an agent of the officers, defendant could not bring a constitutional claim to
challenge the seizure of the phone. Therefore, the court denied defendant’s suppression motion.

The Appellate Division affirmed, concluding that the officers had probable cause to search and faced
exigent circumstances, which justified their warrantless entry into defendant’s home. The panel stated that “[t]he
technology that led police to [defendant’s] home provided some of the exigency supporting their entry” and
concluded that the record supported a finding that the hot pursuit exception to the warrant requirement rendered the
officers’ action constitutional. The panel found that because defendant’s brother, a non-state actor, uncovered the
phone, defendant’s mother’s consent was not significant to the constitutional analysis of this search.

The Court granted certification.
229 N.J. 164 (2017).

HELD: Neither exigency nor the hot pursuit doctrine justified the officers’ warrantless entry here. However,
defendant’s brother’s actions did not constitute state action and were sufficiently attenuated from the unlawful police
conduct to preclude application of the exclusionary rule to the evidence.

1
1. A warrantless entry into a home is presumptively invalid unless the State can show that it falls within one of the
specific, delineated exceptions to the general warrant requirement. Evidence found pursuant to a warrantless search not
justified by an exception to the warrant requirement is subject to suppression under the exclusionary rule. However, the
exclusionary rule applies to preclude the admission of evidence only when such evidence is suitably linked to the police
misconduct. Therefore, when evidence is acquired by constitutionally valid means after initial unconstitutional action
by law enforcement, courts must consider whether the exclusionary rule is applicable. Such evidence is admissible
when the connection between the unconstitutional police action and the secured evidence becomes so attenuated as to
dissipate the taint from the unlawful conduct. (pp. 13-16)

2. One recognized exception to the warrant requirement is the presence of exigent circumstances. To invoke that
exception, the State must show that the officers had probable cause and faced an objective exigency, of which police
safety and the preservation of evidence remain the preeminent determinants. For a “hot pursuit” to justify an
exception to the warrant requirement, officers must have had probable cause and have been in immediate or
continuous pursuit of the suspect from the scene of the crime. Because the “hot pursuit” doctrine is a subset of the
exigent-circumstances exception, the touchstones that would justify a warrantless entry remain the possible
destruction of evidence and the threat of violence by the suspect. In State v. Bolte, hot pursuit could not justify the
police entry when the defendant was unarmed and the police had no reason to believe he posed a danger or would
destroy evidence—a justification usually reserved for narcotics cases.
115 N.J. 579, 593-94 (1989). (pp. 16-19)

3. Here, the Court does not need to consider whether the officer’s pursuit of defendant, facilitated by his use of the
Find My iPhone application, falls within the purview of the hot pursuit doctrine because the doctrine does not apply
for other reasons. The State failed to prove that the police had any basis to believe defendant would injure anyone
inside the house or the officers themselves, so that waiting to obtain a warrant would have been unreasonable.
Likewise, the State did not show that the officers had any reason to believe that defendant would (or could) destroy
the phone. Neither exigency nor the hot pursuit doctrine justified the officers’ warrantless entry here. (pp. 20-21)

4. The Fourth Amendment’s prohibition against unreasonable searches and seizures operates as a restraint only
upon sovereign authority. State v. Scrotsky,
39 N.J. 410, 416 (1963). Thus, “where a private person steals or
unlawfully takes possession of property from the premises of the owner and turns it over to the government, which
did not participate in the taking, it may be used as incriminating evidence against the owner in a subsequent criminal
prosecution.” Ibid. When a private person acts “as an arm of the police,” however, the private person’s seizure of
property constitutes state action for purposes of the Fourth Amendment. Ibid. In Scrotsky, the landlady of an
apartment building suspected that one of her tenants had been stealing personal effects from her home and entered
the tenant’s apartment accompanied by a police detective. Id. at 413-14. The landlady “went into the apartment
with the [police] and seized the property under color of their authority and as a participant in a police action.” Id. at
415. Therefore the evidence seized by the landlady could not be introduced. Id. at 417-18. (pp. 21-23)

5. Here, defendant’s brother was clearly not acting as an agent of the State when he searched for the phone. Unlike
in Scrotsky, defendant’s brother’s actions were completely independent of the officer’s investigation. The mere
presence of an officer does not by itself indicate police coercion or influence, and no evidence in the record supports
that defendant’s brother’s search was causally or temporally connected to the police misconduct. Defendant’s
brother’s unprovoked decision to search for the phone himself is an intervening circumstance that breaks the causal
connection between the unlawful police entry and the finding of the phone. The brother’s actions were voluntary
and unsolicited by the police, and the phone is immune from the exclusionary rule. (pp. 23-26)

The judgment of the Appellate Division is MODIFIED and AFFIRMED.

JUSTICE ALBIN, DISSENTING, notes that the State bears the burden of proving attenuation.
According to Justice Albin, the State failed to show that the unlawful police occupation of the family home did not
heavily influence the brother’s decision to fetch the phone and that, absent the unlawful police presence, the brother
would have volunteered to look for the phone. The taint from the unconstitutional police occupation of defendant’s
home was not purged by the brother’s cooperation with the police, in Justice Albin’s view.

CHIEF JUSTICE RABNER and JUSTICES PATTERSON, SOLOMON, and TIMPONE join in
JUSTICE FERNANDEZ-VINA’s opinion. JUSTICE ALBIN filed a dissenting opinion, in which JUSTICE
LaVECCHIA joins.
2
SUPREME COURT OF NEW JERSEY
A-
38 September Term 2016
077383

STATE OF NEW JERSEY

IN THE INTEREST OF J.A.,

Juvenile–Appellant.

Argued January 2, 2018 – Decided June 6, 2018

On certification to the Superior Court,
Appellate Division.

Peter T. Blum, Assistant Deputy Public
Defender, argued the cause for appellant
J.A. (Joseph E. Krakora, Public Defender,
attorney; Peter T. Blum, of counsel and on
the briefs).

Steven A. Yomtov, Deputy Attorney General,
argued the cause for respondent State of New
Jersey (Christopher S. Porrino, Attorney
General, attorney; Steven A. Yomtov, of
counsel and on the briefs).

Alexander Shalom argued the cause for amicus
curiae American Civil Liberties Union of New
Jersey (Edward L. Barocas, Legal Director,
and Rutgers Constitutional Rights Clinic,
attorneys; Alexander Shalom, Edward L.
Barocas, Jeanne LoCicero, of counsel and on
the brief, and Ronald K. Chen, on the
brief).

Jonathan Romberg argued the cause for amicus
curiae Seton Hall University School of Law
Center for Social Justice (Seton Hall
University School of Law Center for Social
Justice, attorney; Jonathan Romberg, on the
brief).

1
JUSTICE FERNANDEZ-VINA delivered the opinion of the Court.

In this case, we consider the admissibility of evidence

procured from a home after police officers’ warrantless entry.

A man was attacked at a bus stop in Willingboro and his

cell phone was stolen. He and a police officer tracked the

phone’s location to a nearby house using a phone tracking

application.

Several officers arrived at the house, and one spotted the

stolen cell phone’s case through a window. When no one

responded to their knocks on the door, the officers entered the

house through an unlocked window. Once inside, they performed a

protective sweep to determine whether the suspect was inside,

and they found defendant, J.A., then seventeen years of age,

under the covers of a bed. Shortly thereafter, defendant’s

mother and brother arrived home. After the officers explained

their investigation, defendant’s mother consented to a search of

the house, and defendant’s brother voluntarily retrieved the

stolen phone. Defendant was later charged with second-degree

robbery for theft of the phone.

Defendant moved to suppress the evidence, arguing that the

officers’ entry into his home was unconstitutional because the

officers entered without a warrant and there were no

circumstances that would justify an exception to the warrant

requirement. The trial court denied defendant’s motion to

2
suppress. The court found that, although the officers’ search

procedure may have been imprudent, it was ultimately defendant’s

brother -- without any coercion or duress from law enforcement -

- who retrieved the cell phone. The court reasoned that

defendant could not challenge the seizure of the cell phone in

light of that lack of state action.

Defendant appealed, and the Appellate Division affirmed.

The panel held that the officers had probable cause to search

and found that exigent circumstances justified the officers’

warrantless entry into defendant’s home. The panel also found

that the fact that defendant’s brother, and not law enforcement

officers, retrieved the phone neutralized any potential problems

with his mother’s consent.

We disagree with the panel’s determination that the

officers’ warrantless entry was justified by the claimed

exigency faced by the officers. However, we agree that

defendant’s brother’s actions did not constitute state action

and were sufficiently attenuated from the unlawful police

conduct. Because we find that the brother’s independent actions

operate to preclude application of the exclusionary rule to the

evidence, we do not reach the question of defendant’s mother’s

consent to search. Accordingly, we modify and affirm the

judgment of the Appellate Division.

3
A.

On May 30, 2014, the victim was standing at a bus stop in

Willingboro when he was approached by a young man in a hooded

black sweatshirt and camouflage shorts. The young man asked to

use the victim’s cell phone, explaining that he was locked out

of his house. The victim hesitated, then reached to take out

his phone. As the victim was facing the other direction, the

man punched him in the arm, took the phone, and ran.

A Willingboro Police Officer was dispatched to meet the

victim at the bus stop. The victim explained that the phone was

an Apple iPhone, which had been in a pink glittery case.

The officer and the victim used the “Find My iPhone”

application to track the location of the phone. The application

immediately identified a house about three blocks from the bus

stop as the phone’s whereabouts. After about two minutes, the

phone was shut off, which prevented the application from further

tracking the phone’s location.

The officer went to the house, and other police officers

were dispatched there as well. The officers decided to secure

the perimeter of the house. While performing an exterior

security check, an officer peered through a first-floor window

and noticed a pink glittery phone case matching the victim’s

description on a nearby bed. At that point, the police thought

4
that the young man who took the victim’s phone may have been

inside the house.

The officers believed that the house was abandoned:

curtain blinds covered most of the windows, there were no signs

of life inside or cars in the driveway, and no one responded to

the officers’ several knocks on the front door.

One officer found an unlocked window on the first floor,

through which he and another officer entered the house. Another

officer subsequently entered through the front door. Once

inside, the officers began searching the house for the suspect.

During their search, they observed the phone case that was

previously seen through the first floor window, but did not take

possession of it. The phone was not found during that initial

search.

The officers found defendant, unarmed, upstairs in the

master bedroom, lying under a blanket on the bed. The officers

also found a hooded sweatshirt and a pair of camouflage shorts

nearby.

The officers handcuffed defendant, brought him downstairs,

and questioned him about his knowledge of the robbery.

Defendant’s family members subsequently arrived at the house,

including his older brother and mother, who lived there. The

latter appeared irate at defendant upon her arrival. She asked

the police “what did [defendant] do now?” and said that she was

5
“sick” of his antics and that she previously “told him if he

comes here acting up he’s got to go.” She angrily informed the

officers that they could search the house for the missing phone.

The officers explained to defendant’s brother that they

suspected that defendant had stolen the phone. Defendant’s

brother irritably responded that stealing a phone is something

that defendant would be inclined to do. The brother asked if

the officers had found the phone, and when they responded that

they had not, he said that if it was not in defendant’s bedroom,

it was probably in the younger brother’s room. Without

encouragement from the police, he went to their younger

brother’s room accompanied by an officer, found a phone, and

gave it to the officer. The phone matched the victim’s

description of his stolen phone.

Defendant’s mother later provided written consent to search

the house.

Defendant was charged with an act that would have

constituted second-degree robbery, contrary to
N.J.S.A. 2C:15-

1(a)(1), had he been an adult at the time. He filed a motion to

suppress the phone, arguing that it was found as a result of an

unconstitutional search and seizure.

At the suppression hearing, the court found that the police

did not conduct a search of the residence until his mother gave

6
consent. The court also found that defendant’s brother’s search

was not driven by “coercion or duress from law enforcement,”

explaining that although “third parties acting on behalf of the

State are bound by constitutional strictures,” the brother’s

actions here did not constitute state action. The court opined

that the officers’ behavior in the house may have amounted to

“sloppy search procedure.” It held, however, that because

defendant’s brother retrieved the phone, and because he did not

act as an agent of the officers, defendant could not bring a

constitutional claim to challenge the seizure of the phone.

Therefore, the court denied defendant’s suppression motion.

The case went to trial and defendant was adjudicated

delinquent and sentenced to two years of house arrest.

Defendant appealed, arguing that the trial court should

have suppressed the cell phone evidence because the police

officers’ entrance into his home and subsequent search were

unconstitutional. The Appellate Division affirmed. The panel

concluded that the officers had probable cause to search and

faced exigent circumstances, which justified their warrantless

entry into defendant’s home.

The panel explained that the “novel aspect of cutting-edge

technology” -- the Find My iPhone application -- allowed the

police to track the stolen iPhone, and that the police confirmed

that the phone was inside the house when they spotted its case

7
through a window. Together, those facts gave the officers “a

reasonable and well-grounded belief that the person who robbed

the victim minutes earlier was inside the home.”

The panel stated that “[t]he technology that led police to

[defendant’s] home provided some of the exigency supporting

their entry.” In particular, the court found it significant

that two minutes after the officer activated the “Find My

iPhone” application, the phone was turned off. That led the

officer to feel that “immediate action was required because once

the phone was turned off, it could be moved and the GPS

capabilities would not function.” The panel found that this

concern was reasonable, “as the small cell phone could easily

have been destroyed or hidden, and was the only physical

evidence linking [defendant] to the robbery.” Thus, the panel

concluded that, “in entering the residence to secure the area,

determine whether there was any danger to anyone in the house,

and prevent destruction of the proceeds of the robbery,” the

police acted reasonably and within the confines of the Fourth

Amendment.

The panel reasoned that had the officers identified

defendant as a suspect immediately following the taking of the

victim’s phone and then physically followed him to the house,

the “hot pursuit” doctrine, in all likelihood, would have

permitted the warrantless entry. The panel found that, though

8
those facts are not present here, there “was a close temporal

link between a serious criminal event, during which physical

force was used against the victim, and the police pursuit that

resulted in a warrantless entry.” The panel also found that

there was “a reasonable expectation that a delay in obtaining a

warrant would result in the destruction of evidence.”

Therefore, the panel concluded that the record supported a

finding that the hot pursuit exception to the warrant

requirement rendered the officers’ action constitutional.

Moreover, the panel noted that defendant’s brother

voluntarily retrieved the phone and handed it to police. The

panel found that because defendant’s brother, a non-state actor,

uncovered the phone, defendant’s mother’s consent was not

significant to the constitutional analysis of this search. The

panel consequently affirmed.

Defendant filed a petition for certification with this

Court, again challenging the trial court’s denial of his

suppression motion. We granted certification.
229 N.J. 164

(2017). We also granted amicus curiae status to the American

Civil Liberties Union of New Jersey (ACLU) and the Seton Hall

University School of Law Center for Social Justice.

II.

9
First, defendant argues that the hot pursuit doctrine

cannot validate the officers’ warrantless entry into his home.

For the hot pursuit doctrine exception to apply, defendant

asserts, the State must show that the “suspect (1) was armed and

immediately dangerous or (2) knew that the police were in

pursuit and therefore had a reason to immediately dispose of

evidence.” Defendant contends that the State has failed to

prove that he posed a danger to anyone or that he knew that he

was being trailed and would thus be motivated to destroy

evidence.

Additionally, defendant suggests that whether his brother

led the police to the phone is “legally insignificant” because

the “police were not lawfully present in the home.” Defendant

adds that his brother was not acting as a private citizen

because a police officer was “right beside” him as they searched

the house together. Therefore, defendant asserts, his brother

was acting on behalf of the State for constitutional purposes.

As does defendant, amici Seton Hall University School of

Law Center for Social Justice and the ACLU claim that the

officers’ entry into defendant’s home was not justified under

any exception to the warrant requirement. Amici argue that the

hot pursuit doctrine is not applicable because the police were

never in pursuit of defendant and there was no basis to believe

10
that the suspect either posed a danger to officers or anyone in

the house or knew that he was being followed and would therefore

be likely to destroy the phone. Seton Hall University School of

Law Center for Social Justice also posits that the destruction

of the phone was not even possible, distinguishing it from

evidence in other cases, such as controlled substances, which

can actually be disposed of completely via flushing or burning.

Therefore, Seton Hall University School of Law Center for Social

Justice suggests that there could be no fear that the phone

would lose its evidentiary value.

Seton Hall University School of Law Center for Social

Justice further asserts that the officers were not justified in

entering the home based on any other exigency because the theft

of a phone does not alone present sufficiently dangerous

circumstances and the officers could have safely waited to

obtain a telephonic warrant while securing the house.

As to defendant’s brother’s search, amici argue it was the

product of the unlawful police entry. Amici contend that

defendant’s brother acted only after he discovered that the

police had -- as far as he knew, lawfully -- entered the home,

gathered inculpatory evidence, and seized defendant. Thus,

amici claim, the search was the inadmissible fruit of the

illegal entry’s poisonous tree.

11
The State contends that objectively exigent circumstances

existed to justify the officers’ entry because the officers

entered the house “shortly after learning that evidence of a

robbery was in the house.” The State also asserts the officers’

reasonable concern that evidence might be destroyed if they

waited to obtain a warrant because the “suspect had already

changed the appearance of the stolen iPhone by removing it from

its case” and had “turned the phone off.” The State stresses

that because the officers were investigating a violent robbery

and did not know the seriousness of the threat that they or the

occupants of the house faced from the suspect, they needed to

enter the house in order to protect themselves and others.

Additionally, the State disputes amici’s argument that the hot

pursuit doctrine can never be applied where the perpetrator is

unarmed or where there is no actual “chase.”

Finally, the State emphasizes that defendant’s brother

voluntarily located the stolen phone and gave it to the

officers. The State contends that defendant’s brother’s actions

were independent, non-state actions that were sufficiently

attenuated from any alleged misconduct related to the officers’

entry. Thus, according to the State, the trial court properly

held that the phone was admissible at trial.

III.

12
When an appellate court reviews a trial court’s decision on

a motion to suppress, the reviewing court defers to the trial

court’s factual findings, upholding them “so long as sufficient

credible evidence in the record supports those findings.” State

v. Gonzales,
227 N.J. 77, 101 (2016). “An appellate court

'should give deference to those findings of the trial judge

which are substantially influenced by [the] opportunity to hear

and see the witnesses and to have the feel of the case, which a

reviewing court cannot enjoy.’” State v. Elders,
192 N.J. 224,

244 (2007) (quoting State v. Johnson,
42 N.J. 146, 161 (1964)).

However, the reviewing court need not defer to the trial

court’s legal conclusions, State v. Bryant,
227 N.J. 60, 71-72

(2016), which appellate courts review de novo, State v.

Hathaway,
222 N.J. 453, 467 (2015).

The Fourth Amendment of the United States Constitution and

Article 1, Paragraph 7 of the New Jersey Constitution both

safeguard the right to privacy and forbid warrantless entry into

a home except under certain circumstances. State v. Davila,
203 N.J. 97, 111-12 (2010); see also State v. Cassidy,
179 N.J. 150,

160 (2004) (“[P]hysical entry of the home is the chief evil

against which the wording of the Fourth Amendment is directed.”

(quoting State v. Hutchins,
116 N.J. 457, 463 (1989))).

Therefore, a warrantless entry into a home is presumptively

13
invalid unless the State can show that it falls within one of

the specific, delineated exceptions to the general warrant

requirement. Davila,
203 N.J. at 111-12. Courts subject

warrantless entries to “particularly careful scrutiny,” and

“only in extraordinary circumstances may . . . [such entries] be

justified.” State v. Bolte,
115 N.J. 579, 583-84 (1989) (citing

Welsh v. Wisconsin,
466 U.S. 740 (1984)).

Evidence found pursuant to a warrantless search not

justified by an exception to the warrant requirement is subject

to suppression, see State v. Edmonds,
211 N.J. 117, 121-22

(2012), under the exclusionary rule -- “'a judicially created

remedy designed to safeguard’ the right of the people to be to

be free from 'unreasonable searches and seizures,’” State v.

Williams,
192 N.J. 1, 14 (2007) (quoting United States v.

Calandra,
414 U.S. 338, 348 (1974)). The exclusionary rule

prohibits the State from “introducing into evidence the 'fruits’

of” unlawful police conduct, State v. Badessa,
185 N.J. 303, 311

(2005), and thus denies “the prosecution the spoils of

constitutional violations,” id. at 310 (citing State v. Evers,

175 N.J. 355, 376 (2003)).

However, the exclusionary rule applies to preclude the

admission of evidence only when such evidence is suitably linked

to the police misconduct. Id. at 311. Therefore, when evidence

is acquired by constitutionally valid means after initial

14
unconstitutional action by law enforcement, courts must consider

whether the exclusionary rule is applicable.

The appropriate inquiry for courts assessing the

admissibility of the evidence is whether the evidence was “the

product of the 'exploitation’ of [the unconstitutional police

action] or of a 'means sufficiently distinguishable’ from the

constitutional violation such that the 'taint’ of the violation

was 'purged.’” State v. Shaw,
213 N.J. 398, 414 (2012) (quoting

Hudson v. Michigan,
547 U.S. 586, 592 (2006)). Such evidence is

admissible “when the connection between the unconstitutional

police action and the secured evidence becomes 'so attenuated as

to dissipate the taint’ from the unlawful conduct.” Ibid.

(quoting Badessa,
185 N.J. at 311).

In Brown v. Illinois,
422 U.S. 590, 593-94 (1975), the

United States Supreme Court identified three factors that courts

should consider in evaluating attenuation between the valid and

violative police actions. We summarized them in Shaw: “(1)

'the temporal proximity’ between the illegal conduct and the

challenged evidence; (2) 'the presence of intervening

circumstances’; and (3) 'particularly, the purpose and flagrancy

of the official misconduct.’”
213 N.J. at 415 (quoting Brown,

422 U.S. at 603-04). The determination of whether evidence is

the fruit of unlawful police conduct is a factual matter for

courts to decide on a case-by-case basis. State v. Johnson, 118

15 N.J. 639, 653 (1990) (citing Brown,
422 U.S. at 604 n.10;

Dunaway v. New York,
442 U.S. 200, 218 (1979); State v. Worlock,

117 N.J. 596, 625 (1990)).

In sum, evidence seized without a warrant and in the

absence of an exception to the warrant requirement is subject to

suppression unless the exclusionary rule is inapplicable. That

rule does not apply when the conduct through which the evidence

is obtained was too attenuated from the unlawful police conduct

to be subject to its “taint.”

IV.

Here, the State argues that the warrantless entry was

lawful because it was justified by the exigency faced by the

officers.1

One recognized exception to the warrant requirement is the

presence of exigent circumstances. State v. Johnson,
193 N.J.
528, 552 (2008). To invoke that exception, the State must show

that the officers had probable cause and faced an objective

exigency. Bolte,
115 N.J. at 585; accord State v. Dunlap,
185 N.J. 543, 551 (2006).

1 As a threshold matter, although the State claims that the
police officers may have believed the home was vacant, the State
has not shown a reasonable basis to believe the house was
abandoned. The State, in fact, concedes that it is not
challenging the juvenile’s standing based on a theory of
abandonment. See State v. Brown,
216 N.J. 508 (2014).
16
The latter inquiry is fact-sensitive. State v. Nishina,

175 N.J. 502, 516-17 (2003). In that evaluation, a court

considers the totality of the circumstances, see State v.

DeLuca,
168 N.J. 626, 632 (2001), including: “the urgency of

the situation, the time it will take to secure a warrant, the

seriousness of the crime under investigation, and the threat

that evidence will be destroyed or lost or that the physical

well-being of people will be endangered unless immediate action

is taken,” Johnson,
193 N.J. at 552-53. Regarding the weight

assigned to the respective considerations, we have recognized

that “[p]olice safety and the preservation of evidence remain

the preeminent determinants of exigency.” Dunlap,
185 N.J. at
551.

“The 'hot pursuit’ of a defendant who poses a threat to

public safety may in certain contexts constitute an exigent

circumstance sufficient to support a warrantless home

entry . . . .” Bolte,
115 N.J. at 598; see also Steagald v.

United States,
451 U.S. 204, 218 (1981) (noting the Court’s

longstanding recognition that “'hot pursuit’ cases fall within

the exigent-circumstances exception to the warrant

requirement”).

For a “hot pursuit” to justify an exception to the warrant

requirement, officers must have had probable cause, Bolte,
115 N.J. at 593, and have been “in immediate or continuous pursuit

17
of the [suspect] from the scene of [the] crime,” id. at 592

(quoting Welsh,
466 U.S. at 753). However, although “'hot

pursuit’ means some sort of a chase, . . . it need not be an

extended hue and cry in and about the public streets.” United

States v. Santana,
427 U.S. 38, 43 (1976) (internal quotation

marks and brackets removed) (validating warrantless entry after

police were told of suspect’s location by third party, traveled

to her location, saw her on front porch of her house, and

followed her in as she retreated).

Because the “hot pursuit” doctrine is a subset of the

exigent-circumstances exception to the warrant requirement, the

touchstones that would justify a warrantless entry remain the

possible destruction of evidence, ibid.; Bolte,
115 N.J. at 594,

and the threat of violence by the suspect, Bolte,
115 N.J. at
598.

In Bolte, for example, a police officer observed the

defendant driving erratically for approximately one mile. Id.

at 581. The officer followed the defendant home and when the

defendant exited his car and entered his home through a garage

door, the officer followed him into the garage and house. Ibid.

The officer continued upstairs and arrested the defendant in his

bedroom. Ibid. The defendant refused to submit to a

breathalyzer test at the police station and was charged with

motor vehicle and disorderly persons offenses. Ibid. The

18
defendant moved to suppress evidence of his refusal to submit to

the breathalyzer test, claiming that he had been subject to an

unlawful arrest when the officer entered his home without a

warrant. Ibid.

The trial court held that the officer’s entry into the

house was justified under the hot pursuit exception to the

warrant requirement. Ibid. The Appellate Division reversed,

finding that the hot pursuit doctrine applies only when the

suspect has committed a serious offense, and also holding that

exigent circumstances did not exist in the case. Id. at 583.

This Court affirmed, finding that hot pursuit could not

justify the police entry. Id. at 593. We emphasized that the

defendant there was unarmed, and the police had no reason to

believe that he posed a danger to the police or the public.

Ibid. We found that after the defendant had entered his home,

there was no indication that he would hurt anyone inside or

“leave the house to resume his erratic driving behavior.” Id.

at 593-94. Finally, we highlighted that the officers also had

no reason to believe that the defendant would destroy evidence -

- a justification usually reserved for narcotics cases. Id. at

594 (comparing facts to those of Santana,
427 U.S. at 96, which

involved the “threatened destruction of the narcotics”). We

consequently affirmed the Appellate Division’s determination

that the evidence should be suppressed. Id. at 598.

19
B.

With those principles in mind, we turn to the facts of this

case and hold that the officers’ warrantless entry into

defendant’s house was not justified by exigent circumstances.

Although we agree with the Appellate Division’s finding that the

officers had probable cause, we reject its application of the

hot pursuit doctrine.

Initially, we need not consider whether the officer’s

pursuit of defendant, facilitated by his use of the Find My

iPhone application, falls within the purview of the hot pursuit

doctrine because the doctrine does not apply for other reasons.

Our analysis of the circumstances surrounding this pursuit

informs our conclusion that it cannot constitute an exigency

sufficient to justify the suspension of the warrant requirement.

Although the crime committed was arguably a violent one, the

State has failed to prove that the police had any basis to

believe that defendant would injure anyone inside the house or

the officers themselves, so that waiting to obtain a warrant

would have been unreasonable.

Likewise, the State has not shown that the officers had any

reason to believe that defendant would (or could effectively)

destroy the phone. There is no evidence supporting that

defendant knew that he was being followed and would thus have

had an impetus to dispose of the phone. And even if he did,

20
unlike controlled substances or narcotics, a phone cannot be

easily flushed down a drain or destroyed by burning. While it

is possible that defendant powered down the phone so that he

could not be as easily traced, deactivating a tracking device on

an electronic piece of evidence simply reduces the trackable

evidence to an average piece of evidence; the mere presence of

evidence in a home does not alone justify a warrantless entry.

In the absence of any danger that defendant would commit

violent acts or that he would destroy the desired evidence, we

find that the officers’ pursuit of defendant was not an exigency

overriding the warrant requirement. We therefore find that

neither exigency nor the hot pursuit doctrine justified the

officers’ warrantless entry here. However, for the following

reasons, as a result of defendant’s brother’s attenuated, non-

state actions, we affirm the trial court’s denial of defendant’s

motion to suppress.

The Fourth Amendment’s prohibition against unreasonable

searches and seizures operates as a restraint only upon

sovereign authority. State v. Scrotsky,
39 N.J. 410, 416

(1963). Thus, “where a private person steals or unlawfully

takes possession of property from the premises of the owner and

turns it over to the government, which did not participate in

21
the taking, it may be used as incriminating evidence against the

owner in a subsequent criminal prosecution.” Ibid.

When a private person acts “as an arm of the police,”

however, the private person’s seizure of property constitutes

state action. Ibid. In other words, when a private citizen

acts “in concert” with police officers, the private citizen’s

actions are treated as state action for purposes of the Fourth

Amendment. See ibid.

In Scrotsky, the landlady of an apartment building

suspected that one of her tenants had been stealing personal

effects from her home located within the building. Id. at 413.

After two previous visits to the tenant’s apartment, during

which she discovered her possessions, the landlady entered the

tenant’s apartment a third time, accompanied by a police

detective. Id. at 413-14. At the direction of the detective,

the landlady found and reclaimed her stolen property and brought

it to police headquarters before returning home with it. Id. at

414. The tenant was not home during any of the three visits.

Ibid. He was arrested for theft of the landlady’s property and

was eventually convicted. Ibid.

On appeal to this Court, the tenant argued that the

evidence taken by the landlady from his apartment, which was

used at trial to prove the State’s case, was procured by an

unconstitutional search and seizure. Id. at 412. The State

22
contended that the evidence was not vulnerable to constitutional

challenge and hence admissible because the landlady, a non-state

actor, effectuated the search and removed her stolen

possessions. Id. at 414-15.

We disagreed, finding that the landlady “went into the

apartment with the [police] and seized the property under color

of their authority and as a participant in a police action.”

Id. at 415. Reasoning that “the detective and [the landlady]

went to the apartment . . . for a dual purpose, she to recover

her property, he to investigate and obtain evidence of [the]

crime,” id. at 415-16, we determined that “[t]he search and

seizure by one served the purpose of both, and must be deemed to

have been participated in by both,” id. at 416. We concluded

that it would have been “idle to say that the officers did not

conduct the search or seizure,” because the landlady had to be

considered the instrument of the police. Id. at 415. We

therefore remanded for a new trial, ordering that the evidence

seized by the landlady could not be introduced. Id. at 417-18.

Guided by those principles, we turn to the State’s argument

that defendant’s brother’s search for the missing phone was

independent non-state action free from constitutional

restrictions and sufficiently attenuated from the police’s

illegal entry to be permissible. We agree.

23
Defendant’s brother was clearly not acting as an agent of

the State when he searched the house for the phone. Unlike in

Scrotsky, where the landlady and the police detective traveled

to the tenant’s apartment together with the sole purpose of

discovering and retrieving the landlady’s stolen property,

defendant’s brother’s actions were completely independent of the

officer’s investigation. Frustrated with yet another incident

of defendant’s misconduct, defendant’s brother decided to search

the house without solicitation or even encouragement from the

officers present. And when the brother successfully recovered

the victim’s phone, he offered it to the police without request.

The mere presence of an officer during the brother’s self-

imposed investigation does not by itself indicate police

coercion or influence.

Moreover, defendant’s brother’s actions were voluntary and

sufficiently attenuated from the officers’ unlawful entry. No

evidence in the record supports a finding that defendant’s

brother’s search was causally or temporally connected to the

police misconduct. Contrary to the dissent’s assertions, it is

uncontroverted that defendant’s brother arrived some time after

the police without knowledge that the police lacked a warrant.

Further, the dissent’s conclusions that the police’s

unconstitutional presence “surely heavily influenced” and

motivated the brother’s decision to search for the phone and

24
that it was “not likely” that the brother would have looked for

evidence in the parents’ home without the presence of the police

are unsupported by the record. Post at ___ (slip op. at ___).

Defendant’s brother’s unprovoked decision to search for the

phone himself is an intervening circumstance that breaks the

causal connection between the unlawful police entry and the

finding of the phone.

The dissent’s reliance on State v. Smith,
155 N.J. 83

(1998), is misplaced. There, the police knowingly and

intentionally elicited consent to search the apartment shortly

after gaining access to it by unconstitutional means. Here, the

brother’s actions were purely voluntary and unsolicited by the

police. Id. at 89-90. Here, even if we were to characterize

the officers’ action as flagrant, the entry never led to a

police-enacted search for the phone. Defendant’s brother chose

to undertake his search on his own, motivated by his displeasure

with defendant’s actions -- not by any encouragement, request,

or intimidation by the police. Therefore, his actions

constituted “means sufficiently distinguishable to be purged of

the primary taint” of the police misconduct. Shaw,
213 N.J. at
413 (quoting Wong Sun v. United States,
371 U.S. 471, 488

25
(1963)). Consequently, we hold that the phone is immune from

the reach of the exclusionary rule.2

VI.

Accordingly, we modify and affirm the judgment of the

Appellate Division.

CHIEF JUSTICE RABNER and JUSTICES PATTERSON, SOLOMON, and
TIMPONE join in JUSTICE FERNANDEZ-VINA’s opinion. JUSTICE ALBIN
filed a dissenting opinion, in which JUSTICE LaVECCHIA joins.

2 Because we find that the brother’s independent actions operate
to remove the evidence from the ambit of the exclusionary rule,
we do not reach the question of defendant’s mother’s consent to
search.
26
SUPREME COURT OF NEW JERSEY
A-
38 September Term 2016
077383

STATE OF NEW JERSEY

IN THE INTEREST OF J.A.,

Juvenile–Appellant.

JUSTICE ALBIN, dissenting.

I concur with the majority that four officers of the

Willingboro Police Department unlawfully entered the home of

defendant’s family in violation of the Fourth Amendment of the

United States Constitution and Article I, Paragraph 7 of the New

Jersey Constitution. However, I disagree with the majority’s

conclusion that the cell phone retrieved from the home was not

the product of unconstitutional police conduct subject to the

exclusionary rule.

During their unlawful presence in defendant’s home, the

officers swept through various rooms, confronted defendant’s

sister who had just awakened, located and arrested defendant for

the alleged robbery of a cell phone, and seized evidence. The

police then remained unlawfully on the premises until

defendant’s mother, stepfather, and brother returned. The three

family members found their home occupied by the police and the

seventeen-year-old defendant in handcuffs seated on a couch in

the living room. The mother, stepfather, and brother did not

1
know that the police had unlawfully broken into their home and

had no right to be there.

An officer explained to the family members that they were

investigating the theft of a cell phone by defendant. When

asked by the brother whether they had found it, the officer

answered, “nope.” In response to the surreal situation he

encountered, the brother offered to look for the cell phone --

and did so while shadowed by an officer. He discovered the

phone in another brother’s room and gave it to the officer.

I cannot conclude, as the majority does, that the brother’s

act of recovering the cell phone was independent of or

sufficiently attenuated from the unconstitutional police

presence in his home. The State failed to show that the

unlawful police occupation of the family home did not heavily

influence the brother’s decision to fetch the phone and that,

absent the unlawful police presence, the brother would have

volunteered to look for the phone.

Because there was no break in the causative chain between

the officers’ unconstitutional presence in the home and the

ultimate discovery of the cell phone, evidence of the phone

should have been suppressed. I therefore respectfully dissent.

2
The Fourth Amendment and Article I, Paragraph 7 of our

State Constitution are intended to protect the home from

“unreasonable searches and seizures” by the police. State v.

Brown,
216 N.J. 508, 526 (2014). The home is the singular place

where the privacy interests of people are most profound. Ibid.

“Indeed, 'physical entry of the home is the chief evil against

which the wording of the Fourth Amendment is directed.’” State

v. Vargas,
213 N.J. 301, 313 (2013) (quoting United States v.

U.S. Dist. Court,
407 U.S. 297, 313 (1972)).

“The exclusionary rule 'is a judicially created remedy

designed to safeguard’ the right of the people to be free from

'unreasonable searches and seizures.’” State v. Williams,
192 N.J. 1, 14 (2007) (quoting United States v. Calandra,
414 U.S. 338, 348 (1974)). The rule requires the suppression of evidence

secured through the violation of constitutional rights. Id. at

16-17. It is intended “'to deter future unlawful police

conduct’ by denying the prosecution the spoils of constitutional

violations,” State v. Badessa,
185 N.J. 303, 310 (2005) (quoting

State v. Evers,
175 N.J. 355, 376 (2003)), and “to uphold

judicial integrity by serving notice that our courts will not

provide a forum for evidence procured by unconstitutional

means,” State v. Shaw,
213 N.J. 398, 413-14 (2012) (quoting

Williams,
192 N.J. at 14). At its core, the exclusionary rule

ensures that “the Fourth Amendment is not reduced to 'a form of

3
words.’” Evers,
175 N.J. at 376 (quoting Mapp v. Ohio,
367 U.S. 643, 648 (1961)).

An exception to the exclusionary rule is the attenuation

doctrine. Shaw,
213 N.J. at 414. If the seizure of evidence is

so attenuated from unconstitutional police conduct that the

taint from the unlawful conduct is sufficiently purged, the

exclusionary rule will not apply. Ibid. The State bears the

burden of proving attenuation. Brown v. Illinois,
422 U.S. 590,

604 (1975). To determine whether seized evidence is

sufficiently attenuated from police misconduct to justify not

invoking the exclusionary rule, we look to three factors: “(1)

'the temporal proximity’ between the illegal conduct and the

challenged evidence; (2) 'the presence of intervening

circumstances’; and (3) 'particularly, the purpose and flagrancy

of the official misconduct.’” Shaw,
213 N.J. at 415 (quoting

Brown,
422 U.S. at 602-04).

In State v. Smith, a case comparable to the present one, we

applied the Brown factors and rejected the attenuation doctrine

as a basis for upholding the search of a home.
155 N.J. 83,

100-01 (1998). There, based on an informant’s unreliable tip,

the police unconstitutionally detained the defendant on

suspicion of drug dealing and seized from him the keys to his

apartment, where he lived with his sister. Id. at 88-90, 101.

The police learned that no one was in the apartment and that the

4
defendant’s sister was hospitalized. Id. at 89. The police

called and advised the sister that they had the apartment keys

and secured her consent to enter and search the apartment. Id.

at 89-90, 101. Using the keys unlawfully seized from the

defendant, the police entered the apartment and discovered drugs

-- the evidence used to bring criminal charges issued against

him. Id. at 90.

Applying the Brown factors, we held that “the discovery of

the drugs was a product of the unlawful seizure of the keys,”

despite the sister’s consent, and suppressed the evidence. Id.

at 100-01. We reasoned that although the sister’s consent could

not “be ascribed to a single reason or motive, it is clear that

it was heavily influenced by the unlawful seizure of the keys

from defendant.” Id. at 101 (emphasis added). Accordingly, the

sister’s “consent was not an independent intervening

circumstance” breaking the chain of causation stemming from the

unlawful seizure of the defendant’s keys. Ibid.; see also

United States v. Damrah,
322 F. Supp. 2d 892, 901 (N.D. Ohio

2004) (suppressing evidence found in defendant’s home because

wife’s consent to search was not intervening circumstance that

“purged the taint of the agents’ unlawful presence” in

defendant’s home).

5
Applying those principles to the facts of this case leads

to the ineluctable conclusion that the police misconduct is

directly linked to the discovery of the cell phone, which

therefore must be suppressed. Importantly, the State had the

burden of proving attenuation -- a point ignored by the majority

-- and failed to do so.

First, there was no temporal break between the officers’

unconstitutional entry and presence in the home and the

brother’s search for the phone. When the brother arrived, the

police officers had already unconstitutionally entered and

occupied the home, conducted a sweep, gathered incriminating

evidence (the cell phone case and defendant’s camouflage

shorts), and handcuffed defendant, who was seated on the living

room couch. As soon as the brother and his parents came home,

the officers stated that they were investigating the alleged

theft of a cell phone by defendant. The brother asked an

officer whether the police had found the cell phone, and the

officer responded, no. Apparently, the brother believed the

police had conducted an initial search. He had no way of

knowing at the time that the four police officers were

unlawfully on the premises.

Second, the State was required to prove that the

constitutional violation of the family’s home “did not lead to

or significantly influence” the brother’s actions. See Smith,

155 N.J. at 101. Whatever displeasure the brother might have

expressed about defendant to the officers, his offer to find the

cell phone cannot be disentangled from the presence of the

officers as an occupying force in his family’s home. The State

did not show that the unconstitutional presence of the officers

did not “heavily influence[]” the brother’s decision to

cooperate -- or at least was not one motive to do so. See ibid.

It would hardly be surprising that the brother would want to

hasten the departure of the police from his parent’s home. The

State did not show that the brother’s action was voluntary, an

act of unconstrained free will, given that the officers appeared

unlikely to leave until they accomplished their mission. Would

the brother have looked for incriminating evidence to damn his

seventeen-year-old sibling in the absence of the

unconstitutional police presence in his parent’s home? Not

likely. Cast in that light, there are no true intervening

circumstances breaking the unconstitutional chain of causation.

Third, the officers’ entry and occupation of the home was a

flagrant violation of the family’s -- not just defendant’s --

constitutional rights under our Federal and State Constitutions.

Without the justification of exigent circumstances, officers

entered through a house window, went from room to room,

surprised defendant’s recently awakened sister, took defendant

into custody, and gathered evidence. The exclusionary rule, if

7
nothing else, is directed at deterring the police from

unlawfully entering the sanctity of the home and exploiting

their unconstitutional conduct, as occurred in this case.

II.

In conclusion, the State failed to carry the burden of

proving that the police misconduct did not significantly

influence the brother’s decision to search for the cell phone.

Because the taint from the unconstitutional police occupation of

defendant’s home was not purged by the brother’s cooperation

with the police, the ultimate seizure of the phone by the police

violated both the Fourth Amendment and Article I, Paragraph 7 of

our State Constitution. Unlike the majority, I would apply the

exclusionary rule to this flagrant violation of the right of a

family to be secure in their home from unreasonable searches and

seizures.

I therefore respectfully dissent.

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