Jan. 23, 2026 – The Fourth Amendment’s private search doctrine protected a warrantless view of a video that Snapchat flagged as child sexual abuse material (CSAM), a majority of the Wisconsin Supreme Court agreed on Wednesday in State v. Gasper, 2026 WI 3.

“The government did not exceed the scope of Snapchat’s search when it viewed the video because any expectation of privacy [Michael Joseph] Gasper may have had in the video was frustrated by the private search, and there was virtual certainty that law enforcement would not find anything of significance beyond what the private search revealed,” wrote Justice Annette Kingsland Ziegler for the five-justice majority.

Chief Justice Jill J. Karofsky and Justices Rebecca Grassl Bradley, Brian K. Hagedorn, and Janet C. Protasiewicz joined the majority opinion.

Justice Rebecca Frank Dallet wrote in her concurrence that the good-faith exception to the exclusionary rule protected the search.

“[L]aw enforcement made a reasoned, though mistaken in my view, decision to follow the weight of non-binding authority on an unsettled legal question, as reflected in the decisions of two federal circuits and two state appellate courts,” Dallet wrote.

Justice Susan M. Crawford dissented in part, saying neither the private search doctrine nor the good-faith exception protected the viewing – but “the remaining facts gained from the CyberTip and investigation were sufficient to support probable cause for the search warrant of Gasper’s home and devices.”

“I thus agree with the mandate reversing the circuit court’s order suppressing evidence obtained pursuant to the search warrant.”

Hash Values Versus Eyeballs

In compliance with federal law, Snapchat’s user agreement prohibits CSAM on its platform. Through a computerized scan of a video’s digital fingerprint, Snapchat flagged a video and submitted it to the National Center for Missing and Exploited Children (NCMEC), whose own hash match confirmed Snapchat’s scan.

Neither of these scans involved human viewing of the video.

NCMEC sent a CyberTip and the video to Wisconsin Department of Justice (DOJ). A DOJ analyst, operating without a warrant, opened the file to confirm it contained CSAM and obtained identifying information from the internet service provider by administrative subpoena.

The DOJ forwarded the CyberTip and video to the Waukesha County Sheriff’s Office, whose detective also viewed the video without a warrant to confirm it depicted CSAM.

Both the CyberTip and video justified a warrant to search Gasper’s home and electronic devices, where police found ten files on his cell phone with CSAM.

Gasper was charged with ten counts of possession of child pornography and nine counts of sexual exploitation of a child.

He moved to suppress the evidence as an unconstitutional search “because the government was the first to view the video and did so without a warrant.” Any subsequent evidence, Gasper argued, was fruit of the poisoned tree.

The detective who viewed the video testified that Snapchat’s and NCMEC’s computerized scans were accurate. CyberTips have always led to pornographic videos.

The Waukesha County Circuit Court granted Gasper’s suppression motion because no human at Snapchat viewed the video and because the court believed Snapchat’s scan that assigned a hash value could result in misidentification.

The Wisconsin Court of Appeals reversed the circuit court, reasoning that Gasper had no reasonable expectation of privacy because of Snapchat’s Terms of Service, Community Guidelines, and Sexual Content Explainer.

The video came from the search of the Snapchat account, to which Snapchat has access, and not Gasper’s cell phone, the Court of Appeals clarified.

Private Search

The government may view anything within a private search without a search warrant, the majority opinion explained, because the private search “frustrates” the individual’s reasonable expectation of privacy.

Gasper argued the DOJ and the detective exceeded the private search and needed a warrant because they were the first to watch the video, something that no private search had done.

Viewing the video was like the Drug Enforcement Administration’s search in U.S. v. Jacobsen, 466 U.S. 109 (1984), the majority explained.

In Jacobsen, a forklift accident damaged a package. Following company policy, Federal Express employees opened the package – and “discovered several plastic baggies of white powder.”

A subsequent DEA test confirming the powder was cocaine didn’t exceed the private search, the U.S. Supreme Court held, because “‘there was a virtual certainty that nothing else of significance’ was in the package, and the inspection would not have provided ‘anything more than [what it] already had been told.’”

The “almost absolute certainty” of the computerized hash value comparisons, which flagged the video as CSAM, was nothing more than what human eyes did, which was to determine that the video was CSAM, the majority explained.

Two recent decisions specifically about private search scans, U.S. v. Miller, 982 F.3d 412 (6th Cir. 2020) and U.S. v. Reddick, 900 F.3d 636 (5th Cir. 2018), supported the majority’s conclusion – as well as three state courts that adopted their reasoning.

Although two other circuits in U.S. v. Wilson, 13 F.4th 961 (9th Cir. 2021) and U.S. v. Maher, 120 F.4th 297 (2d Cir. 2024) came to the opposite conclusion, the majority found their reasoning “incongruous” and disregarding “how the scanning operates.”

A human detective’s skills did not meaningfully expand the search beyond what the private search covered, the majority said, and no one provided evidence that the scanning program was flawed.

“Gasper does not argue that the government viewed more than the one video provided, nor does he argue that anything else of significance was in the video,” the majority said.

The search “did not exceed the scope of Snapchat’s search” and is protected by the private search doctrine, the majority concluded.

Concurrences written by Justice Ziegler and Justice Hagedorn, who was joined by Chief Justice Karofsky and Justice Protasiewicz, provided additional analysis consistent with the majority decision.

Dallet: Good-Faith Exception

Justice Dallet argued in the part of her concurrence joined by Justice Crawford that Snapchat’s contractual agreement with Gasper cannot thwart constitutional expectations of privacy against the government. Courts have rejected that argument.

“Because breaches of private agreements in the real world do not eliminate renters’ or users’ reasonable expectations of privacy against government intrusion, it is irrelevant that Gasper breached Snapchat’s terms of service when he privately uploaded the video to his account,” Dallet wrote.

Law enforcement watching the video without a warrant, Dallet wrote, resulted in the detectives violating Gasper’s reasonable expectation of privacy because, as Wilson held, viewing the video “reveals innumerable granular private details.”

Justice Dallet believed the good-faith exception applied. The DOJ weighed the Fifth and Sixth Circuits’ decisions followed by two state courts allowing the search against the Ninth Circuit’s Wilson decision.

“Even though not all instances of law enforcement reliance on non-binding precedent will fall within the good-faith exception, this one does,” Dallet concluded.

Crawford: No Good Faith, Enough Probable Cause

Justice Crawford’s opinion, joined by Justice Dallet, said the private search doctrine didn’t apply because the Snapchat scan merely flagged the video as “apparent CSAM,” not defining “what specimen of ‘known CSAM.’”

“Only by opening and playing the file did the government confirm it contained an intact video that was unequivocally CSAM,” and the detective used that information to justify the subsequent search warrant, Crawford explained.

That information provides more than the private search, as the Second and Ninth Circuits concluded, Crawford wrote.

Much like a dog sniff detecting potential narcotics provides limited information requiring a warrant to seize luggage, Crawford wrote, “Snapchat’s digital scans likewise reveal limited information about the files it flags,” requiring a warrant to view the video.

Crawford departed from Dallet, however, by emphasizing that only “reasonable reliance on binding precedent is not subject to the exclusionary rule,” requiring precedent that is “clear and settled.”

The DOJ knew precedent was unsettled. It could have easily obtained a search warrant. More than 60 days passed between receiving the tip and the warrant to search Gasper’s property, Crawford said. “[T]he government instead chose to risk violating Gasper’s rights.”

Although the video should be suppressed, Crawford said the CyberTip and related information provided probable cause, giving the state “sufficient untainted evidence” to conduct the physical search.

“Because the evidence obtained from the lawful search pursuant to the warrant was obtained independently from the constitutional violation, it need not be excluded.”

This article was originally published on the State Bar of Wisconsin’s Wisbar Court Review blog, which covers case decisions and other developments in the Wisconsin Supreme Court, the Wisconsin Court of Appeals, and the U.S. Court of Appeals for the Seventh Circuit. To contribute to this blog, contact Joe Forward.