A criminal suspect had no expectation of privacy in his cellphone number and so could not suppress evidence obtained from an intercepted phone call, a New Jersey appeals court held on June 8.
In a case of first impression, State of New Jersey v. DeFranco , the Appellate Division ruled a cellphone number is “simply a number,” in contrast to other “seemingly innocuous” information that has been held to be private because it “constituted the keys to the details” of people’s lives.
The panel drew a distinction between “assigned information,” like a cellphone number, and “generated information,” such as phone billing records and banking records, in which New Jersey courts have recognized a right of privacy under the New Jersey Constitution.
Defendant Patrick DeFranco, a former teacher at Valleyview Middle School in Denville, N.J., was accused of sexually assaulting a 13-year-old boy in a classroom closet in 1998.
The student did not report the incident until November 2005. Having no evidence to back up the accusation, he agreed to call DeFranco and try to elicit incriminating statements while the police listened in and recorded the conversation.
After the first attempt failed because the phone number he had for DeFranco was outdated, Detective Matthew Potter of the Morris County Prosecutor’s Office contacted a Denville detective for help in securing a current number.
The detective, in turn, asked Denville police officer Jeffrey Tucker, who was assigned three days a week to the school as a school resource officer. Tucker asked the school principal’s secretary and was given DeFranco’s cellphone number with the principal’s approval.
The former student made the call and reached DeFranco, who did not ask how he obtained the number or express surprise that he had it. The appeals court described the ensuing conversation as centered on past sexual contacts and the victim’s concern that DeFranco would do the same with his younger siblings, who were then students at Valleyview. The call ended with DeFranco and the student tentatively agreeing to meet the next day at DeFranco’s condominium.
DeFranco was indicted in Morris County on charges of first-degree aggravated sexual assault, second-degree sexual assault and third-degree endangering the welfare of a child.
Though the wiretap was legal under New Jersey law because one party to it gave consent, DeFranco moved to suppress the conversation on the ground that his cellphone number itself was private.
At a hearing before Morris County Superior Court Judge John Dangler, DeFranco testified that although he gave the school the number, he understood the directory was only for use of staff and professionals. The directory stated it was not to be shared with nonstaff but also stated unlisted numbers were identified by asterisks.
There was no asterisk next to DeFranco’s number, but he testified that it was an error and that he did not give out his number because he did not want calls from parents upset about their children’s grades. He had, however, provided his number to some parents and students in connection with an overseas school trip that he co-chaperoned.
Tucker testified that the police had all the school staff phone numbers in a School Emergency Operations Plan to which he had access but that he sought the number from the school because he was there the day he was asked for it.
After Dangler refused to suppress the call, DeFranco reached a deal with the prosecution and on June 2, 2010, pleaded guilty to the second-degree sexual assault charge, admitting that he performed a prohibited sex act on the victim when he was 13 years old. He was sentenced to five years in prison and required to register as a sex offender.
On appeal, he argued that the police should have had a search warrant or grand jury subpoena to access the number and that he did not waive his right to keep the number private by giving it out for job-related purposes. In support, he cited State v. Reid , where the New Jersey Supreme Court recognized a privacy interest in the subscriber information Web users provide to Internet service providers.
In their published opinion, Appellate Division Judges Edith Payne, Susan Reisner and Marie Simonelli contrasted the information in Reid and in other cases where a privacy right was found with the number at issue in DeFranco.
While courts have found a protected interest in the list of telephone numbers dialed from a home telephone because who a person calls “could reveal intimate details of a person’s life,” Payne wrote, “we do not find that defendant’s professed subjective expectation of privacy is one that society would be willing to recognize as reasonable.”
That DeFranco, “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.”
Even if he did have a protected privacy interest in the number, he waived it by giving the victim his number in the past, Payne said.
DeFranco’s lawyer on appeal, Alan Zegas of Chatham, N.J., said he will likely seek New Jersey Supreme Court certification.
He said cellphone numbers do not provide any less information than phone billing records, because they allow police not only to call suspects but to track their movements and interactions.
Whether cellphone numbers provided for a limited purpose remain private or become public and usable by others, including employers, “is an important issue that has the capacity to affect all of us in our private lives,” Zegas said.
Deputy Attorney General Steven Yomtov, who handled the appeal, said the court was correct in according different treatment to information that reveals intimate details of a person’s life, versus a mere phone number. He added that he is unaware of any other decision on the issue in New Jersey or elsewhere.
Morris County prosecutor Robert Bianchi released a statement saying the office is “extremely pleased” with the ruling, “aggressively prosecuted” the case and “will continue to pursue those predators who commit crimes against our children.”
Timothy Donohue, president of the Association of Criminal Defense Lawyers of New Jersey, said the New Jersey Supreme Court has a history of finding that the New Jersey Constitution provides broader protections that its federal counterpart and it might want to look at the issue. Donohue is with Arleo Donohue & Biancamano in West Orange, N.J.
Mary Pat Gallagher is a reporter for the New Jersey Law Journal, a Legal affiliate. •