Authorities acted properly in obtaining a private cellphone number for a former Denville elementary school teacher that was used in the investigation of the instructor’s sexual abuse of a student, a state appeals court ruled Friday.
Defendant Patrick DeFranco, now 45, pleaded guilty in 2010 to sexual assault on a 13-year-old male student between March and April 1998 when DeFranco was a computer teacher at the Valleyview Middle School in Denville. He is more than halfway through a five-year sentence he is serving in state prison.
In pleading guilty, DeFranco reserved his right to appeal a Superior Court judge’s denial of his motion to suppress evidence of a telephone conversation he had in 2005 with the former student, which police had consent to listen in on from the victim. Authorities had not obtained a search warrant or grand jury subpoena to obtain the DeFranco cell number before the victim used it.
The appeals court agreed with the trial judge, finding that under the circumstances, DeFranco had no reasonable expectation of privacy in the cell phone number police obtained so the victim could contact him. DeFranco had furnished the number to the school, which in turn provided the school resource officer — a “de facto” school employee — with the number.
DeFranco’s victim came forward seven years after the abuse because he feared the teacher might prey on his younger siblings. A phone number the victim had for DeFranco was disconnected, so the school resource officer was enlisted to get DeFranco’s cell number from school administration. DeFranco’s lawyer had argued that the teacher had a reasonable expectation of privacy in nondisclosure of the number. But the victim, in a call intercepted by police, contacted DeFranco, who was not surprised to hear from him and made suggestive remarks that backed up the victim’s claim of abuse.
“That defendant, upon answering a call to his cellphone number, chose to recall intimate details of his past was not a function of the disclosure of the number, but rather a function of defendant’s voluntary determination to engage in conversation with a victim that he had previously sexually abused. Thus defendant was complicit in the intrusion into his life of which defendant now complains,” the appeals court wrote.
In other words, “The number was simply a number,” the court concluded.
The appellate court distinguished between the DeFranco case, in which a simple phone number was disclosed, and a person’s expectation of privacy with such items as long-distance billing information, banking records and utility records. Those records have the capacity to reveal intimate details of a person’s life, the court found.
The appellate court also said that DeFranco waived any protectable privacy interest in his cellphone number anyway, because he did not specifically tell the school to keep it private, and he did not admonish the victim for calling him on it and even disclosed his address and willingness to meet again during their intercepted conversation.
Source : dailyrecord