State v. Gasper

1

State of Wisconsin, Plaintiff-Appellant, v. Michael Joseph Gasper, Defendant-Respondent.

No. 2023AP2319-CR

Court of Appeals of Wisconsin, District II

October 30, 2024

APPEAL from an order of the circuit court for Waukesha County No 2023CF470: SHELLEY J. GAYLORD, Reserve Judge.

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

NEUBAUER, J.

¶1 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 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) Snapchat^[1] 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 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.

¶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 Miranda^[4] 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 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 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, § ll.^[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.

¶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 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 [d\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...