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. The judgment of the Appellate Division is modified and affirmed.
In dissent, Justice Albin noted 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.
Justice Fernandez-Vina’s citations to the “Fourth Amendment” give insight into his pro-police inclinations. Until he and the other Governor Christie-appointees were nominated to the New Jersey Supreme Court, our state had a rich history of citing to Article 1, paragraph 7 of the New jersey Constitution in providing citizens greater protections than those required by the fourth amendment.