State v. Michael Joseph Gasper, 2023AP2319, 10/30/24, District 4 (recommended for publication); case activity (including briefs)
The circuit court held that an officer’s warrantless inspection of a cyber tip digital 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. The COA concludes that Gasper did not have a reasonable expectation of privacy in the video, which he uploaded to Snapchat in violation of the terms of service and reverses.
Snapchat submitted a report to the CyberTipline of the National Center for Missing and Exploited Children after detecting a child porn video that had been uploaded to Gasper’s Snapchat account with a program that scans files to determine if they are copies of known and reported child pornography based on their “hash values.” (¶2). The cybertip was sent to the WI DOJ. A DOJ employee and a detective both opened the video. (¶¶3-4). The detective obtained and executed a search warrant at Gasper’s home and Gasper ultimately admitted he had accessed child porn on his phone. (¶4).
Gasper moved to suppress the Snapchat video and all other child porn evidence obtained from the search of his home as the fruit of a warrantless unconstitutional search of the video. (¶5). The detective testified and the state submitted into evidence Snapchat’s policies and guidelines, which banned child porn, and informed users that Snapchat was actively scanning for child porn and that Snapchat will report discovery of the same to NCMEC and law enforcement. (¶6). The circuit court granted Gasper’s motion on the basis that he had a reasonable expectation of privacy because he used a cellphone to access Snapchat, relying on Riley v. California, 573 U.S. 373 (2014), and Carpenter v. United States, 585 U.S. 296 (2018).
The COA holds instead that Gasper lacked a reasonable expectation of privacy in the child porn video because he uploaded it to Snapchat in violation of its terms of service, and law enforcement’s “visual inspection” of the video was therefore not a search subject to the Fourth Amendment. (¶8). The court begins its analysis by noting that the circuit court did not address either the necessary subjective or objective inquiries pursuant to State v. Tentoni, 2015 WI App 77, ¶6, 365 Wis. 2d 211, 871 N.W.2d 285. Applying its analysis from State v. Bowers, 2023 WI App 4, 405 Wis. 2d 716, 985 N.W.2d 123 (2022), the COA concludes that Snapchat acquired the video from Gasper’s Snapchat account, not his phone, making the Snapchat account the relevant “area” that was searched. (¶¶12-15).
Next, the court analyzes the Snapchat policies introduced by the state and concludes that Gasper has failed to satisfy his burden to prove either his subjective or an objective expectation of privacy (¶¶16-21). He did not present evidence of his subjective expectation. Because Snapchat warned Gasper it would access his account and scan content for child porn, and Gasper agreed to those terms, he has no objective expectation of privacy. The lack of any objective expectation “dooms Gasper’s challenge.” (¶¶21-22).
The COA goes on to analyze the additional factors in the objective prong of the test, and then references several federal district court decisions with which it agrees. (¶¶23-28).
