State v. Michael Joseph Gasper

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
October 30, 2024
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2023AP2319-CR Cir. Ct. No. 2023CF470

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-APPELLANT,

V.

MICHAEL JOSEPH GASPER,

DEFENDANT-RESPONDENT.

APPEAL from an order of the circuit court for Waukesha County:
SHELLEY J. GAYLORD, Reserve Judge. Reversed and cause remanded.

Before Gundrum, P.J., Neubauer and Lazar, JJ.

¶1 NEUBAUER, J. The State of Wisconsin appeals from an order
granting Michael Joseph Gasper’s motion to suppress. The primary issue is
whether a law enforcement officer’s warrantless inspection of a cyber tip digital
No. 2023AP2319-CR

video file provided to the officer and identified as child pornography by a private
internet service provider constituted an unreasonable search in violation of the
Fourth Amendment. We conclude that Gasper did not have a reasonable
expectation of privacy in the video, and thus, the officer’s inspection was not a
search subject to the Fourth Amendment. Accordingly, we reverse the
suppression order and remand this matter for further proceedings consistent with
this opinion.

BACKGROUND

¶2 On January 13, 2023, the electronic service provider (ESP)
Snapchat1 submitted a report to the CyberTipline of the National Center for
Missing and Exploited Children (“NCMEC”), as required by federal law.2
Snapchat detected a child pornography video that had been “saved, shared, or
uploaded” to Gasper’s Snapchat account. The video was not made public, and no
one else saw it. Snapchat detected the video using Microsoft’s PhotoDNA
program that scans files to determine if they are copies of known and reported

1
Snapchat is a social media platform where users can “share text, photographs, and
video recordings, collectively known as ‘snaps.’” Commonwealth v. Carrasquillo, 179 N.E.3d
1104, 1109 (Mass. 2022). While Snap, Inc. is the entity identified in Snapchat’s terms of service
and incorporation documents discussed herein, for ease of reading we refer to both the platform
and entity as Snapchat.
2
“In order to reduce ... and ... prevent the online sexual exploitation of children,” federal
law requires ESPs like Snapchat to report to NCMEC “any facts or circumstances from which
there is an apparent violation of ... child pornography [statutes]” “as soon as reasonably possible
after obtaining actual knowledge of any [such] facts or circumstances.” 18 U.S.C.
§§ 2258A(a)(1)(A)(i), (a)(2)(A), 2510(15), 2258E. The contents of that report are left to the
discretion of the provider but may include, inter alia, email addresses, internet protocol (IP)
addresses, geographic location information, and descriptions of the identified images. Id.
§ 2258A(b). NCMEC then forwards the CyberTip report to the appropriate law enforcement
agency for possible investigation. Id. § 2258A(c).

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child pornography based on their “hash values.”3 The submission to NCMEC
indicated the presence of “Apparent Child Pornography” stored in the Snapchat
user account and listed Gasper’s subscriber information—his username, IP
address, email address, and date of birth. That same day, Snapchat locked
Gasper’s account. No person from Snapchat or NCMEC opened the video.

¶3 NCMEC traced the IP address tied to Gasper’s account to Wisconsin
and thus sent the CyberTip report to the Wisconsin Department of Justice (DOJ).
Other than the video, the CyberTip did not include any content from Gasper’s
account. A DOJ policy analyst opened the video and prepared and submitted an
administrative subpoena to Gasper’s internet service provider seeking the name
and mailing address associated with Gasper’s IP address.

3
“A hash value is an algorithmic calculation that yields an alphanumeric value for a
file.” United States v. Stevenson, 727 F.3d 826, 828 (8th Cir. 2013). We have described hash
values as a “digital signature.” State v. Baric, 2018 WI App 63, ¶5, 384 Wis. 2d 359, 919
N.W.2d 221. The algorithm derives the hash value by analyzing all the “bits” of data in a
particular file. Software programs can scan a file, derive its hash value, and compare that hash
value to a database of hash values of known child pornography files. See id., ¶6 (describing such
a program). PhotoDNA can detect slightly altered copies of known child pornography files. The
CyberTip report indicated that the video linked to Gasper’s Snapchat account was a hash match
of a file containing child pornography.

As the federal district court in United States v. Lowers, 715 F. Supp. 3d 741, 748
(E.D.N.C. Feb. 5, 2024), recently explained:

As for a hash search’s capacity to identify contraband, “hash
searches are like dog sniffs but even better.” Dennis Martin,
Demystifying Hash Searches, 70 STAN. L. REV. 691, 717 (2018);
see also Rebekah A. Branham, Hash It Out: Fourth Amendment
Protection of Electronically Stored Child Exploitation, 53
AKRON L. REV. 217, 219 (2019) (citing evidence that the chance
of two different files sharing the same hash value “is less than
one in one billion”).

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No. 2023AP2319-CR

¶4 Detective David Schroeder then received a copy of the CyberTip
video. He opened the single video and confirmed that it depicted child
pornography. Schroeder confirmed that Gasper occupied the residence connected
to the IP address and that the available Wi-Fi networks outside Gasper’s home
were password protected and not publicly accessible. Using the information
learned from the CyberTip video, Schroeder prepared and executed a search
warrant at Gasper’s home. Police seized electronic devices from Gasper’s home
and took him into custody. Gasper waived his Miranda4 rights and admitted that
he had accessed additional child pornography files on his phone.

¶5 Gasper was charged with ten counts of possessing child
pornography.5 He filed a motion to suppress seeking exclusion of the Snapchat
video because Schroeder opened it without a warrant or exception. He also sought
to suppress the other child pornography evidence recovered from the search of his
home as the fruit of a warrantless unconstitutional search of the Snapchat video.

¶6 Schroeder was the only witness to testify at the hearing on Gasper’s
motion to suppress. Schroeder described how PhotoDNA operates and recounted
how he responded to the CyberTip. The State submitted into evidence Snapchat
policies and guidelines that govern a user’s use of Snapchat and that all users,
including Gasper, must agree to upon creating a Snapchat account. These policies
banned child pornography and informed users that Snapchat was actively scanning

4
Miranda v. Arizona, 384 U.S. 436 (1966).
5
Gasper was also charged with nine counts of sexual exploitation of a child, although
this appeal concerns only Gasper’s claim that all child pornography evidence should be
suppressed.

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No. 2023AP2319-CR

for child pornography and that Snapchat will report discovery of the same to
NCMEC and law enforcement.

¶7 The circuit court granted Gasper’s motion to suppress the video and
all the child pornography evidence discovered pursuant to the warrant that relied
on the video. The court determined that Gasper had a reasonable expectation of
privacy because he used a cell phone to access Snapchat, citing Riley v.
California, 573 U.S. 373 (2014) and Carpenter v. United States, 585 U.S. 296
(2018). The State appeals the order granting suppression.

DISCUSSION

Gasper Lacked a Reasonable Expectation of Privacy in a Child Pornography
Video That He Uploaded to Snapchat in Violation of Its Terms of Service.

¶8 Gasper contends that the circuit court properly granted his motion to
suppress because he had a reasonable expectation of privacy in the CyberTip video
from his Snapchat account. The State contends that Gasper failed to show an
objectively reasonable expectation of privacy sufficient to establish that the search
violated his Fourth Amendment rights. As we now explain, we agree that Gasper
failed to meet his burden to establish an objectively reasonable expectation of
privacy in the video. Thus, Detective Schroeder’s visual inspection of the video
was not a search subject to the Fourth Amendment.

I. Standard of Review

¶9 On review of a motion to suppress evidence, we uphold the circuit
court’s factual findings unless they are clearly erroneous. State v. Tentoni, 2015
WI App 77, ¶6, 365 Wis. 2d 211, 871 N.W.2d 285. Whether the government
conduct at issue constitutes a search, and if so, whether that search passes

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No. 2023AP2319-CR

constitutional muster, are questions of law to be decided de novo. Id.; see also
State v. Garcia, 195 Wis. 2d 68, 73, 535 N.W.2d 124 (Ct. App. 1995).

II. Fourth Amendment Principles: Reasonable Expectation of Privacy

¶10 The Fourth Amendment protects against unreasonable searches and
seizures by the government. U.S. CONST. amend. IV; see also WIS. CONST. art. I,
§ 11.6 Fourth Amendment rights are personal and may not be asserted vicariously.
State v. Bruski, 2007 WI 25, ¶22 n.3, 299 Wis. 2d 177, 727 N.W.2d 503. A
search occurs for the purpose of the Fourth Amendment “when an expectation of
privacy that society is prepared to consider reasonable is infringed.” State v.
Purtell, 2014 WI 101, ¶21, 358 Wis. 2d 212, 851 N.W.2d 417 (quoting United
States v. Jacobsen, 466 U.S. 109, 113 (1984)). Thus, a person challenging a
search bears the burden of establishing by a preponderance of the evidence that he
or she has a reasonable expectation of privacy in the area or object of the
challenged search. Tentoni, 365 Wis. 2d 211, ¶7; Bruski, 299 Wis. 2d 177, ¶22.
The privacy interest is both subjective and objective: a defendant must show he or
she subjectively expected privacy in the area or object, and the expectation is one
that society recognizes as reasonable. Tentoni, 365 Wis. 2d 211, ¶7. Failure to
establish either defeats the defendant’s motion to suppress. See State v. Baric,
2018 WI App 63, ¶18 n.5, 384 Wis. 2d 359, 919 N.W.2d 221.

6
The Wisconsin Supreme Court “generally follows the United States Supreme Court’s
interpretation of the search and seizure provision of the Fourth Amendment in construing
Article I, Section 11 of the Wisconsin Constitution.” State v. Bruski, 2007 WI 25, ¶20 n.1, 299
Wis. 2d 177, 727 N.W.2d 503.

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No. 2023AP2319-CR

¶11 With regard to the objective prong, we consider the following
nonexclusive factors in determining whether the totality of circumstances shows
that a person has a reasonable expectation of privacy:

(1) whether the accused had a property interest in the
premises; (2) whether the accused is legitimately (lawfully)
on the premises; (3) whether the accused had complete
dominion and control and the right to exclude others;
(4) whether the accused took precautions customarily taken
by those seeking privacy; (5) whether the property was put
to some private use; [and] (6) whether the claim of privacy
is consistent with historical notions of privacy.

Bruski, 299 Wis. 2d 177, ¶24 (citation omitted). “[T]he reasonableness of an
expectation of privacy in digital files shared on electronic platforms is determined
by considering the same factors as in any other Fourth Amendment context.”
Baric, 384 Wis. 2d 359, ¶19.

III. Application to Gasper

¶12 As an initial matter, we note that the circuit court did not address
either the subjective or the objective inquiries in regard to the video in Gasper’s
Snapchat account. Instead, the court relied on Riley (requiring a warrant to search
arrestees’ cell phones) and Carpenter (requiring probable cause to obtain cell-site
records) to conclude that Gasper had a reasonable expectation of privacy in the
video in his Snapchat account because he accessed it with his cell phone.
However, Snapchat acquired the video from Gasper’s Snapchat account, not his
phone. That made Gasper’s Snapchat account the relevant “area” that was
searched. See State v. Bowers, 2023 WI App 4, ¶¶26, 44-45, 405 Wis. 2d 716,
985 N.W.2d 123 (2022).

¶13 In Bowers, we analyzed whether the defendant had a reasonable
expectation of privacy in his Dropbox account, a cloud-based storage account that

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No. 2023AP2319-CR

he created with his work email address. Bowers, 405 Wis. 2d 716, ¶¶1-3. We
noted that the Dropbox account was a digital version of a physical storage
container that could be accessed from “one device or a thousand devices.” Id.,
¶¶26- 27. That conclusion turned on the features of the Dropbox account, not the
device that Bowers used to access it. See id., ¶¶20, 21-27, 40-42 (“We therefore
address only whether Bowers’ expectation of privacy in his [a]ccount was
objectively reasonable” (emphasis added)). The Dropbox account was not tied to
a “‘physical device of any kind’ and was not stored on county property or
controlled by the county.” Id., ¶27. Because the cloud-based storage center was
password protected, and Bowers did not share the content of his account with
anyone other than those he chose to, we concluded that Bowers had a reasonable
expectation of privacy. See id., ¶¶21, 45.

¶14 As relevant here, we rejected the State’s argument that because
Bowers created the account with his county government email address and his
employer could access the Dropbox account through the email address, Bowers
lacked a reasonable expectation of privacy. Id., ¶¶22, 42. We explained that the
county “did not search its own devices to access the information in Bower’s
[a]ccount; it used the internet as a tool to access the outside server on which the
[a]ccount was located.” Id., ¶42. Thus, the relevant “area” for purposes of
determining whether Bowers had a reasonable expectation of privacy was the
Dropbox account, not the device used by Bowers to access it. See id., ¶¶17, 20,
40.

¶15 This analysis applies here. Snapchat did not access the video in
Gasper’s account through his cell phone. Rather, the video was obtained directly
from Gasper’s Snapchat account. Snapchat scanned the data held on its own
servers and identified the child pornography video in Gasper’s account without

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No. 2023AP2319-CR

accessing any of his devices. Thus, the relevant question is whether Gasper had a
reasonable expectation of privacy in the video in his Snapchat account.

¶16 He did not. As noted above, at the motion to suppress hearing, the
State introduced three documents that show that Snapchat informed Gasper that it
would be scanning and accessing his account for content that violated its terms of
service (such as child pornography) and would report violations to law
enforcement: (1) the “Snap Inc. Terms of Service”; (2) Snapchat’s “Community
Guidelines”; and (3) its “Sexual Content Community Guidelines Explainer Series”
(the “Sexual Content Explainer”).

¶17 The Terms of Service forbid using Snapchat “in any way not
expressly permitted by these Terms or [the] Community Guidelines.” They also
forbid users from “violat[ing] any applicable law … in connection with [their] use
of” Snapchat. By making an account, users specifically authorize Snapchat to
“access, review, screen, and delete [their] content at any time and for any reason.”
The Terms of Service also contain a section entitled “Safety” that provides that if a
user fails to comply with the Terms of Service, Snapchat “reserve[s] the right to
remove any offending content, terminate or limit the visibility of your account,
and notify third parties—including law enforcement—and provide those third
parties with information relating to your account.” At multiple points the Terms
of Service contain a hyperlink to the Community Guidelines.

¶18 The Community Guidelines prohibit “any activity that involves
sexual exploitation or abuse of a minor.” They require that users “[n]ever post,
save, send, forward, distribute, or ask for nude or sexually explicit content
involving anyone under the age of 18.” Snapchat explains that it will “report all
instances of child sexual exploitation to authorities, including attempts to engage

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No. 2023AP2319-CR

in such conduct.” The Community Guidelines refer users and provide a hyperlink
to the Sexual Content Explainer “[f]or more information about sexual conduct and
content that violates [the] Community Guidelines.”

¶19 The Sexual Content Explainer restates Snapchat’s prohibition on any
content or activity related to the sexual exploitation of a child. It also has a
paragraph describing how it scans user accounts and reports child pornography to
NCMEC, just as it did in this case:

Preventing, detecting, and eradicating Child Sexual
Abuse Material (CSAM) on our platform is a top priority
for us, and we continuously evolve our capabilities to
address CSAM and other types of child sexually
exploitative content. We report violations of these policies
to [NCMEC], as required by law. NCMEC then, in turn,
coordinates with domestic or international law
enforcement, as required.

¶20 Gasper has failed to satisfy his burden to prove either his subjective
or an objective expectation of privacy. First, as to any subjective expectation of
privacy, Gasper did not testify, nor did he submit any admissible evidence to meet
his burden to show that he believed the video downloaded on Snapchat was
private.7 Other than Schroeder’s affidavit that established Gasper’s Wi-Fi was
password protected, there is no factual basis to conclude that Gasper had a
subjective expectation of privacy in the video.

¶21 Even if Gasper had opted to testify to a subjective expectation, the
Snapchat policies make it clear that any subjective expectation of privacy would
be unfounded. This dooms Gasper’s challenge. The evidence presented to the
7
While Gasper submitted an affidavit, the circuit court ruled that it was inadmissible.
Gasper does not challenge that ruling on appeal, and thus, has abandoned any effort to rely on the
affidavit.

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No. 2023AP2319-CR

circuit court showed that Gasper agreed to terms that he violated by saving,
sharing, or uploading a child pornography video to his account. Snapchat
informed him that it would be scanning and accessing his account for content that
violated the terms of service like child pornography and would report violations to
NCMEC, as required by federal law, and to law enforcement. The terms to which
Gasper agreed vitiate any claimed subjective expectation of privacy.

¶22 To further explain, even if Gasper had attested to a subjective
expectation of privacy in the Snapchat video, that expectation would be
objectively unreasonable given Snapchat’s policies regarding sexual content in
general and sexually explicit content involving children in particular. As to the
first two factors identified in Bruski, Snapchat’s terms limited Gasper’s property
interest in his account, which prohibited him from saving, sharing, or uploading
child pornography to his account. See Bruski, 299 Wis. 2d 177, ¶27 (considering
property interest in the object of the search). That conduct was obviously
unlawful.

¶23 As to the third factor, Snapchat’s Terms of Service, Community
Guidelines, and Sexual Content Explainer limited Gasper’s dominion and control
over his account when it came to child pornography. See id., ¶¶27-28 (considering
dominion, control, and the right to exclude others). Gasper agreed that Snapchat
could monitor his account for content violations, and Snapchat reserved the right
to access offending accounts, actively scan for child pornography, delete content
and terminate his account, and advised that it would report child pornography to
the authorities. Thus, Gasper could not exclude Snapchat from his account when
it came to child pornography.

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No. 2023AP2319-CR

¶24 As to the fourth and fifth factors, even if his account were password
protected, Gasper acknowledged that Snapchat expressly denied him permission,
control, or privacy with respect to child pornography, no matter what precautions
he took. See id., ¶¶24, 28 (considering “precautions customarily associated with
those seeking privacy” and whether “property was put to some private use”).
Finally, Gasper has failed to identify any historical notion of privacy for a child
pornography video that has no lawful purpose. See id., ¶30 (considering historical
notions of privacy).

¶25 While no Wisconsin court has addressed this issue, several federal
district courts have determined that when a user agrees to an ESP’s terms of
service that advise that child pornography is prohibited content, the ESP would be
scanning and accessing the account for violations of the terms, and the ESP would
report violations to law enforcement, the user has no reasonable expectation of
privacy in the child pornography in his or her account. See, e.g., United States v.
Lowers, 715 F. Supp. 3d 741, 753-54 (E.D.N.C. Feb. 5, 2024) (collecting federal
district court cases).

¶26 As one federal district court concluded, “given the prohibitions and
reservations of rights in [Snapchat’s] Terms of Service and Community Standards,
even for the CyberTips involving uploaded images and videos whose contents
were not ‘publicly available,’ a reasonable person would not have viewed files
containing prohibited content as private.” United States v. Tennant, No. 23-CR-
79, 2023 WL 6978405, at *9 (N.D.N.Y. Oct. 10, 2023) (denying motion to
suppress child pornography recovered in searches of defendant’s Snapchat and
other social media accounts).

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No. 2023AP2319-CR

¶27 Another federal district court reached the same conclusion,
reasoning that Yahoo’s and Google’s terms of service warned a defendant that he
“risked being reported to law enforcement or NCMEC if either discovered that he
sent, received, or distributed apparent child pornography. Even if Defendant
believed that his [content was] private, society is not prepared to recognize that
belief as reasonable given the Terms of Service ….” United States v. Brillhart,
No. 22-CR-53, 2023 WL 3304278, at *8 (M.D. Fla. May 7, 2023) (denying
motion to suppress evidence of child pornography recovered from defendant’s
Yahoo and Google accounts); see also United States v. Colbert, No. 23-CR-
40019, 2024 WL 2091995, **8-9 (D. Kan. May 9, 2024) (concluding that
defendant lacked a reasonable expectation of privacy in child pornography on his
Snapchat account because Snap, Inc.’s Terms of Service warned him that unlawful
information related to his account could be released to law enforcement and its
Community Guidelines warned him that child sexual exploitation would be
reported to authorities); but see United States v. Coyne, 387 F. Supp. 3d 387, 396
(D. Vt. 2018) (concluding that defendant retained a reasonable expectation of
privacy in his Microsoft, Yahoo, and Chatstep accounts because the user
agreements failed to specifically inform him that his content would be disclosed
“to NCMEC and its law enforcement partners”).

¶28 We agree with the conclusion reached in Lowers, Tennant,
Brillhart, and Colbert. Gasper’s agreement to Snapchat’s Terms of Service,
Community Guidelines, and Sexual Content Explainer vitiated any subjective
expectation of privacy he might have had in the child pornography saved to his
account. Even if he had testified to such a belief, that expectation is not
objectively reasonable. Accordingly, Gasper has not met his burden in

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No. 2023AP2319-CR

demonstrating that any expectation of privacy in the video was either subjectively
or objectively reasonable.

CONCLUSION

¶29 Detective Schroeder’s viewing of the video that accompanied the
CyberTip did not constitute a search under the Fourth Amendment. Because the
viewing of the video was not subject to the Fourth Amendment, the search warrant
subsequently issued based on the video was also valid. The suppression order is
therefore reversed, and this case is remanded for further proceedings consistent
with this opinion.8

By the Court.—Order reversed and cause remanded.

Recommended for publication in the official reports

8
Because we determine that no Fourth Amendment “search” occurred, we need not
reach the additional grounds the State sets forth for reversal, including an exception to the warrant
requirement based on a private party search conducted by Snapchat and the good faith exception
to the exclusionary rule. See State v. Blalock, 150 Wis. 2d 688, 703, 442 N.W.2d 514 (Ct. App.
1989) (cases should be decided on narrowest possible ground).

14