Opposition Brief — Michael Joseph Gasper, Petitioner v. Wisconsin

No. 25-1191

In The

Supreme Court of the United States

 i 

MICHAEL JOSEPH GASPER,

Petitioner,

v.

WISCONSIN,

Respondent.

 i 

ON PETITION FOR WRIT OF CERTIORARI TO

THE WISCONSIN SUPREME COURT

 i 

BRIEF IN OPPOSITION

 i 

JOSHUA L. KAUL

Attorney General of Wisconsin

MICHAEL J. CONWAY

Assistant Attorney General

JOHN A. BLIMLING

Assistant Attorney General

Counsel of Record

Attorneys for Respondent

Wisconsin Department of Justice

Post Office Box 7857

Madison, Wisconsin 53707-7857

(608) 267-3519

john.blimling@wisdoj.gov

i

QUESTIONS PRESENTED

Snapchat used a hash-value scanning program to

identify a 16-second video in Michael Gasper’s

account as child sexual abuse material. Snapchat

reported the video. A Wisconsin detective reviewed

Snapchat’s report and viewed the video without a

warrant. In an interlocutory decision, the Wisconsin

Supreme Court held that the private search doctrine

applied. The detective did not need a warrant to view

the video because his viewing did not expand the

private search already conducted by Snapchat.

Although the Wisconsin Supreme Court

addressed only the private search doctrine, Gasper’s

petition presents three questions:

1. Did Gasper prove:

a) a subjective expectation of privacy in the

video attached to the CyberTip; and

b) that this subjective expectation of privacy

was objectively reasonable?

2. Did the detective expand Snapchat’s private

search by viewing the video?

3. Alternatively, does the good faith exception to

the exclusionary rule apply?

ii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED .................................. i

INTRODUCTION ................................................. 1

JURISDICTIONAL STATEMENT ...................... 2

STATUTORY PROVISION .................................. 2

STATEMENT OF THE CASE .............................. 3

REASONS FOR DENYING THE PETITION...... 9

I.

THIS

COURT

LACKS

JURISDICTION BECAUSE THE

WISCONSIN SUPREME COURT’S

DECISION IS NOT A FINAL

JUDGMENT. ............................................... 9

II.

GASPER’S PETITION PROVIDES A

POOR VEHICLE IN WHICH TO

ADDRESS AN ISSUE THAT HAS

DIVIDED COURTS. .................................. 16

A.

This Court should not grant

certiorari on two questions

unaddressed by the Wisconsin

Supreme Court. ............................... 17

B.

Gasper has not shown that a

victory in this Court on the

private

search

doctrine

question will have any practical

effect. ............................................... 18

iii

C.

III.

Gasper cannot prove that the

Fourth Amendment applies to

the video on this record. ................. 20

THE

WISCONSIN

SUPREME

COURT’S DECISION IS SOUND. ........... 23

CONCLUSION ..................................................... 27

iv

TABLE OF AUTHORITIES

Cases

Brigham City v. Stuart,

547 U.S. 398 (2006) .......................................... 25

Byrd v. United States,

584 U.S. 395 (2018) .................................... 21, 22

California v. Ciraolo,

476 U.S. 207 (1986) .......................................... 21

Carpenter v. United States,

585 U.S. 296 (2018) ............................................ 6

Chimel v. California,

395 U.S. 752 (1969) .......................................... 12

Cox Broadcasting Corp. v. Cohn,

420 U.S. 469 (1975) .......................... 1, 11, 13, 15

Cutter v. Wilkinson,

544 U.S. 709 (2005) .......................................... 17

Florida v. Jardines,

569 U.S. 1 (2013) .............................................. 22

Florida v. Thomas,

532 U.S. 774 (2001) .................. 10, 12, 13, 14, 15

Flynt v. Ohio,

451 U.S. 619 (1981) .......................................... 10

Fort Wayne Books, Inc. v. Indiana,

489 U.S. 46 (1989) ............................................ 10

v

Hiibel v. Sixth Jud. Dist. Ct. Nev.,

Humboldt Cnty.,

542 U.S. 177 (2004) .......................................... 23

Michigan v. Long,

463 U.S. 1032 (1983) ........................................ 20

Mills v. Alabama,

384 U.S. 214 (1966) .......................................... 11

Minnesota v. Carter,

525 U.S. 83 (1998) ............................................ 21

New York v. Belton,

453 U.S. 454 (1981) .......................................... 12

New York v. Quarles,

467 U.S. 649 (1984) .................................... 13, 14

Radio Station WOW, Inc. v. Johnson,

326 U.S. 120 (1945) .......................................... 10

Rakas v. Illinois,

439 U.S. 128 (1978) .......................................... 21

Riley v. California,

573 U.S. 373 (2014) ............................................ 6

Smith v. Arizona,

602 U.S. 779 (2024) .......................................... 17

United States v. Bebris,

4 F.4th 551 (7th Cir. 2021) ............................... 18

United States v. Dixon,

137 F.4th 592 (7th Cir. 2025) ........................... 22

vi

United States v. Jacobsen,

466 U.S. 109 (1984) ................................ 7, 23, 24

United States v. Lowers,

170 F.4th 134 (4th Cir. 2026) ..................... 18, 19

United States v. Maher,

120 F.4th 297 (2d Cir. 2024) ...................... 18, 25

United States v. Meals,

21 F.4th 903 (5th Cir. 2021) ............................. 18

United States v. Miller,

982 F.3d 412 (6th Cir. 2020) ............................ 18

United States v. Powell,

925 F.3d 1 (1st Cir. 2018) ................................. 18

United States v. Reddick,

900 F.3d 636 (5th Cir. 2018) .................. 3, 18, 24

United States v. Ringland,

966 F.3d 731 (8th Cir. 2020) ............................ 18

United States v. Wilson,

13 F.4th 961 (9th Cir. 2021) ............................. 18

Statutes

28 U.S.C. § 1257 ..................................................... 2

28 U.S.C. § 1257(a)..................... 2, 9, 10, 11, 15, 17

1

INTRODUCTION

Gasper’s petition for certiorari presents three

issues, but the Wisconsin Supreme Court addressed

only one of them (the second question presented). And

although there is a conflict among the courts on that

second question, Gasper’s petition for certiorari does

not provide this Court the right opportunity to resolve

it.

Most importantly, this Court lacks jurisdiction.

The Wisconsin Supreme Court’s decision was

interlocutory and does not fit within any exception

recognized in Cox Broadcasting Corp. v. Cohn, 420

U.S. 469 (1975). Gasper has not been convicted; and

the Wisconsin Supreme Court remanded Gasper’s

case. On remand, Gasper will litigate additional

suppression arguments that remain pending.

Because Gasper has not been convicted and further

proceedings remain in state court, the Wisconsin

Supreme Court’s decision is not a final judgment that

provides this Court jurisdiction.

Even if this Court had jurisdiction, certiorari

would not be merited. Although the Wisconsin

Supreme Court addressed only the private search

doctrine, Gasper raises two additional questions. This

Court should adhere to its practice of declining to

decide issues in the first instance. As for the private

search doctrine, several vehicle problems weigh

against this Court addressing that issue in this case.

Reversal of the Wisconsin Supreme Court’s decision

would have no practical effect on Gasper’s case

because the child pornography files found on his cell

phone that led to his charges would remain

2

unexcluded. In addition, the record precludes Gasper

from proving that the Fourth Amendment applies to

the video file reported by Snapchat. Finally, the

Wisconsin Supreme Court’s decision is sound. This

Court should deny Gasper’s petition.

JURISDICTIONAL STATEMENT

Gasper erroneously claims that the decision of the

Wisconsin Supreme Court is a final judgment that

confers jurisdiction on this Court pursuant to 28

U.S.C. § 1257(a). Pet. 1. This Court lacks jurisdiction

because the Wisconsin Supreme Court’s decision is

not a “final judgment[ ]” under 28 U.S.C. § 1257(a).

Gasper has not been convicted or sentenced, and he

has future criminal proceedings awaiting in the

Wisconsin trial court. As explained in further detail

below, these future proceedings in state court

preclude the Wisconsin Supreme Court’s decision

from constituting a final judgment under 28 U.S.C.

§ 1257(a).

STATUTORY PROVISION

28 U.S.C. § 1257 provides:

(a) Final judgments or decrees rendered by

the highest court of a State in which a

decision could be had, may be reviewed by the

Supreme Court by writ of certiorari where the

validity of a treaty or statute of the United

States is drawn in question or where the

validity of a statute of any State is drawn in

question on the ground of its being repugnant

3

to the Constitution, treaties, or laws of the

United States, or where any title, right,

privilege, or immunity is specially set up or

claimed under the Constitution or the treaties

or statutes of, or any commission held or

authority exercised under, the United States.

(b) For the purposes of this section, the term

“highest court of a State” includes the District

of Columbia Court of Appeals.

STATEMENT OF THE CASE

Snap, Inc., an electronic service provider (ESP),

detected a 16-second video depicting child sexual

abuse material (CSAM) in Gasper’s account on Snap’s

social media platform, Snapchat. Pet. App. 5a–6a ¶ 7,

91a ¶ 2 n.1. Snapchat detected the video using

PhotoDNA, a program that scans files to determine if

they are copies of known CSAM files. Pet. App. 5a–6a

¶ 7. PhotoDNA detects CSAM files using hash values.

Pet. App. 5a–6a ¶ 7.

A hash value “is a string of characters obtained by

processing the contents of a given computer file and

assigning a sequence of numbers and letters that

correspond to the file’s contents.” United States v.

Reddick, 900 F.3d 636, 637 (5th Cir. 2018). A file’s

hash value remains constant regardless of the file’s

name, making it similar to a vehicle identification

number. Pet. App. 6a ¶ 8 n.9. ESPs can scan a file,

derive its hash value, and compare that hash value to

a database containing hash values for files previously

seen and identified as CSAM. See Pet. App. 5a–7a,

4

¶¶ 7–8 & n.9. If the hash value of the scanned file

matches a hash value in the database, then the

scanned file is identified as a copy of a known CSAM

file. See Pet. App. 6a ¶ 8 & n.9.

The uniqueness of a hash value makes it

extremely sensitive to any changes to the file. If a user

alters a single pixel in a file, then the hash value for

that file will change substantially. Pet. App. 6a ¶ 8

n.8. A possessor of CSAM can evade hash-value

detection by slightly altering the CSAM file. Pet. App.

6a ¶ 8 n.8. PhotoDNA combats this evasive tactic. Pet.

App. 6a ¶ 8 n.8. Instead of obtaining and comparing

hash values of individual files, PhotoDNA obtains the

hash values of “pieces” of scanned files and compares

them to the hash values for the “pieces” of previously

identified CSAM files. Pet. App. 8a ¶ 12.

Snapchat reported Gasper’s CSAM video in a

CyberTipline report (CyberTip) with the National

Center for Missing and Exploited Children (NCMEC).

Pet. App. 2a, 5a–6a ¶¶ 2, 7. No one at Snapchat

viewed the 16-second video before reporting it. Pet.

App. 6a ¶ 7. “NCMEC also did not view the video, but

did confirm that the video was CSAM through a hash

match of the uploaded file to visually similar files that

were previously viewed and categorized by NCMEC.”

Pet. App. 6a ¶ 8. NCMEC sent the CyberTip with the

video to the Wisconsin Department of Justice, where

an analyst viewed the video without a warrant. Pet.

App. 6a–7a ¶ 8. After confirming that the video

depicted CSAM, the analyst issued an administrative

subpoena to Gasper’s internet service provider. Pet.

App. 7a ¶ 8. After the administrative subpoena

returned Gasper’s name and address, the analyst

5

forwarded the CyberTip to a local detective. Pet App.

7a ¶ 9.

The local detective reviewed the CyberTip and

viewed the CSAM video without a warrant. Pet. App.

7a ¶ 9. Based upon the CyberTip and the content of

the video, the detective obtained and executed a

search warrant on Gasper’s residence and electronic

devices. Pet. App. 7a ¶ 9. Investigators found ten

CSAM files on Gasper’s phone. Pet. App. 7a ¶ 9.

Gasper admitted that he accessed and stored CSAM

on his cell phone. Pet. App. 7a ¶ 9. No law

enforcement officer ever accessed Gasper’s Snapchat

account or cell phone without a warrant. Pet. App.

32a–33a ¶ 45.

The State of Wisconsin (the State) charged

Gasper with ten counts of possessing child

pornography and nine counts of sexual exploitation of

a child in violation of state law. Pet. App. 7a–8a ¶ 10.

Gasper filed a motion to suppress, raising numerous

grounds. Pet. App. 119a. He argued that Wisconsin’s

administrative subpoena statute violates the U.S.

Constitution, the Wisconsin constitution, and

Wisconsin state law. Pet. App. 121a–22a. He argued

that he had a reasonable expectation of privacy in the

video attached to the CyberTip, and that the detective

violated the Fourth Amendment by viewing that

video without a warrant. Pet. App. 122a–23a. He

argued that the search warrant did not authorize a

search of the contents of his electronic devices. Pet.

App. 123a. Gasper also filed a separate motion to

suppress his statements to law enforcement. Pet. 6.

6

The trial court held a hearing. The detective

explained how PhotoDNA works and described the

CyberTip process. Pet. App. 8a ¶ 11. Based on his

prior experience, the detective considered PhotoDNA

to be a reliable means of identifying suspected CSAM.

Pet. App. 8a ¶ 11. The detective had never received a

CyberTip with a PhotoDNA match that did not have

CSAM attached. Pet. App. 8a ¶ 11.

The State submitted Snapchat’s terms of service

into evidence. Pet. App. 9a ¶ 13. In those policies,

Snapchat informed users that CSAM was banned,

Snapchat searched for CSAM, and Snapchat reported

CSAM to NCMEC. Pet. App. 9a ¶ 13. Gasper did not

testify, but he attempted to submit an affidavit

regarding his subjective expectation of privacy,

notwithstanding Snapchat’s terms and conditions.

Pet. App. 9a ¶ 14. The trial court ruled the affidavit

inadmissible. Pet. App. 9a ¶ 14.

The trial court determined that the detective

violated the Fourth Amendment by viewing the

CSAM video attached to the CyberTip without a

warrant. Pet. App. 9a–10a ¶ 15. The trial court

“essentially 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). Pet. App. 13a ¶ 21 n.13. Because no one at

Snapchat viewed the video, the trial court reasoned

that the detective expanded Snapchat’s search by

viewing the video. Pet. App. 9a ¶ 15. The trial court

excluded the video and all the CSAM recovered from

Gasper’s phone as fruit of the poisonous tree. Pet.

7

App. 107a.1 The trial court did not address any of

Gasper’s other suppression arguments. Pet. App.

108a–17a.

The State appealed and the Wisconsin Court of

Appeals reversed. The court of appeals determined

that Gasper failed to prove either his subjective

expectation of privacy or the objective reasonableness

of his expectation of privacy. Pet. App. 101a ¶ 20.

Gasper failed to “submit any admissible evidence to

meet his burden to show that he believed the video

downloaded on Snapchat was private.” Pet. App. 101a

¶ 20. Gasper did not challenge the trial court’s ruling

excluding his affidavit and, thus, “abandoned any

effort to rely on the affidavit.” Pet. App. 101a ¶ 20 n.7.

Any subjective expectation of privacy “would be

objectively unreasonable given Snapchat’s policies

regarding sexual content in general and sexually

explicit content involving children in particular.” Pet.

App. 102a ¶ 22.

Gasper obtained review by the Wisconsin

Supreme Court. Pet. App. 11a ¶ 18. The supreme

court affirmed the court of appeals on an alternative

ground—the private search doctrine. Pet. App. 5a

¶ 6.2 The Wisconsin Supreme Court explained that,

consistent with United States v. Jacobsen, 466 U.S.

109 (1984), the detective did not expand Snapchat’s

1 The trial court did not

address the good faith exception

because it erroneously believed that the State did not argue it.

Pet. App. 113a.

The Wisconsin Supreme Court vacated the Wisconsin

Court of Appeals’ opinion, depriving it of any precedential value.

Pet. App. 5a ¶ 6 n.6.

2

8

private search by viewing the flagged video because

Snapchat’s private scan with PhotoDNA provided a

“virtual certainty” that the video depicted nothing but

CSAM. Pet. App. 31a ¶ 43. Because the detective did

not expand Snapchat’s private search by viewing the

video, the detective did not need a warrant. Pet. App.

33a ¶ 46.

The Wisconsin Supreme Court did not address

whether Gasper proved his reasonable expectation of

privacy or whether the good faith exception to the

exclusionary rule applied. Pet. App. 33a–35a ¶¶ 47–

50. It remanded the case to the trial court “for further

proceedings consistent with this opinion.” Pet. App.

36a ¶ 52.

Two justices disagreed with the Wisconsin

Supreme Court’s rationale, but they would not have

affirmed the trial court’s suppression order. Pet. App.

43a–44a ¶ 66, 70a ¶ 107. Justice Dallet concurred in

the judgment after concluding that the good faith

exception applied. Pet. App. 61a ¶ 91. Justice

Crawford concluded that the good faith exception did

not apply, requiring exclusion of the video attached to

the CyberTip. Pet. App. 86a–87a ¶¶ 132–33.

However, Justice Crawford concluded that the

CyberTip provided lawfully collected evidence that

established probable cause for the search warrant.

Pet. App. 88a ¶ 136. Therefore, the CSAM files

obtained from Gasper’s phone “need not be excluded.”

Pet. App. 89a ¶ 137.

Gasper then petitioned for a writ of certiorari.

9

REASONS FOR DENYING THE PETITION

This Court should deny the petition for three

reasons. First, this Court lacks jurisdiction. The

Wisconsin Supreme Court’s decision is not a final

judgment under 28 U.S.C. § 1257(a) because Gasper

has not been convicted and further proceedings

remain in the Wisconsin trial court.

Second, Gasper’s petition presents a poor vehicle

in which to resolve any of his questions presented.

The Wisconsin Supreme addressed only one of his

three questions—the application of the private search

doctrine. The private search doctrine question is not

suitable for this Court’s review because, even if

Gasper were to prevail, he would still not be able to

exclude the CSAM files from his phone that provide

the basis for his charges. This Court could also affirm

on the alternative basis that Gasper failed to prove

that the Fourth Amendment even applied to the video

attached to the CyberTip. Gasper cannot prove his

subjective expectation of privacy in the video, and he

has never asserted a property interest in the video.

Third, the Wisconsin Supreme Court issued a

legally sound and reasonable decision that does not

require this Court’s intervention.

I.

THIS COURT LACKS JURISDICTION

BECAUSE THE WISCONSIN SUPREME

COURT’S DECISION IS NOT A FINAL

JUDGMENT.

This Court should deny certiorari for lack of

jurisdiction. This Court has jurisdiction to review

10

“[f]inal judgments and decrees rendered by the

highest court of a State in which a decision could be

had.” 28 U.S.C. § 1257(a). “In general, the finaljudgment rule has been interpreted ‘to preclude

reviewability . . . where anything further remains to

be determined by a State court, no matter how

dissociated from the only federal issue that has finally

been adjudicated by the highest court of the State.’”

Flynt v. Ohio, 451 U.S. 619, 620 (1981) (alteration in

original) (quoting Radio Station WOW, Inc. v.

Johnson, 326 U.S. 120, 124 (1945)). “In criminal

prosecution, finality generally ‘is defined by a

judgment of conviction and the imposition of a

sentence.’” Florida v. Thomas, 532 U.S. 774, 777

(2001) (quoting Fort Wayne Books, Inc. v. Indiana,

489 U.S. 46, 54 (1989)).

Gasper’s guilt has not yet been adjudicated, and

he has not been sentenced. For that reason, the

Wisconsin Supreme Court remanded the case “for

further proceedings consistent with this opinion.” Pet.

App. 36a ¶ 52. Gasper has pending suppression

arguments to litigate on remand. The trial court has

yet to determine whether Wisconsin’s administrative

subpoena statute violates the U.S. Constitution, the

Wisconsin constitution, or Wisconsin state law. Pet.

App. 121a–22a. The trial court has yet to decide

whether the search warrant extended to the contents

of Gasper’s phone, which is where law enforcement

found the CSAM files that animate Gasper’s charges.

Pet. App. 7a ¶ 9, 123a. The trial court still must

address Gasper’s motion to suppress his statements.

Pet. 6.

11

Depending on the result of those suppression

arguments, Gasper will have to decide whether to

accept a plea or proceed to trial. An erroneous failure

to suppress evidence may prove harmless at a trial.

Alternatively, a successful suppression motion may

require additional litigation regarding the fruit of the

poisonous tree doctrine. These future proceedings in

Wisconsin state court establish that the Wisconsin

Supreme Court’s decision for which Gasper seeks a

writ of certiorari is not a final judgment under 28

U.S.C. § 1257(a).

In Cox Broadcasting Corp. v. Cohn, 420 U.S. 469

(1975), this Court recognized four categories of state

court decisions that qualify as final judgments,

notwithstanding the existence of future proceedings

in state court. The Wisconsin Supreme Court’s

decision does not fit within any of the four categories.

The first category covers interlocutory decisions

in a criminal case when “there are further

proceedings—even entire trials—yet to occur in the

state courts but where for one reason or another the

federal issue is conclusive or the outcome of further

proceedings preordained.” Cox, 420 U.S. at 479. This

situation arose in Mills v. Alabama, 384 U.S. 214

(1966), in which the defendant argued that a state

criminal offense violated the First Amendment. Id. at

216–18. The defendant had no other defense. Id. at

217. This Court determined that it had jurisdiction

because further proceedings “would be no more than

a few formal gestures leading inexorably towards a

conviction.” Id.

12

Thomas illustrates why Gasper’s case does not

fall within the scope of Mills. Like Gasper’s case,

Thomas, concerned a state supreme court’s

interlocutory ruling on a motion to suppress evidence.

Thomas, 532 U.S. at 776–77. The Florida Supreme

Court had rejected the State’s reliance on New York

v. Belton, 453 U.S. 454 (1981), in arguing that

narcotics evidence obtained from a car should not be

suppressed. Thomas, 532 U.S. at 776–77. The Florida

Supreme Court remanded for additional fact-finding

and for the trial court to determine whether the

search of the car was justified under Chimel v.

California, 395 U.S. 752 (1969). Thomas, 532 U.S. at

777. Because “[t]he Florida Supreme Court remanded

the case not only for application of Chimel, but for

further factfinding, and the State has not conceded

that the search is invalid under Chimel,” Mills was

inapt. Thomas, 532 U.S. at 778.

Like Thomas, the suppression arguments raised

in Gasper’s petition are neither conclusive nor

outcome determinative. As in Thomas, the Wisconsin

Supreme Court remanded Gasper’s case for further

proceedings, which will include resolution of Gasper’s

alternative theories of suppression. Pet. App. 36a,

120a–24a. At least one of those theories, the challenge

to the search warrant, provides a means independent

of this petition of suppressing the CSAM that forms

the basis for Gasper’s charges. Pet. App. 123a. As in

Thomas, the State does not concede any of Gasper’s

alternative theories of suppression. Thus, Mills does

not apply because the viability of Gasper’s

prosecution does not rise and fall with the issues

raised by Gasper’s petition. Remand is not a mere

formality for an inexorable march to conviction.

13

The second Cox category arises when “the federal

issue, finally decided by the highest court in the State,

will survive and require decision regardless of the

outcome of future state-court proceedings.” Cox, 420

U.S. at 480. This situation did not arise in Thomas

because a decision on the Belton issue raised by the

petition for certiorari “would no longer be necessary”

if the Florida state court determined that Chimel

authorized the search of the vehicle. Thomas, 532

U.S. at 779. Similarly, here, if Gasper prevails on one

of his alternative motions to suppress the CSAM

obtained from his phone, then a decision regarding

the private search doctrine would no longer be

necessary.

Moreover, Thomas noted that this category of

state court judgments assumes “that ‘the federal

questions that could come here have been adjudicated

by the State court,’ and the state proceedings to take

place on remand ‘could not remotely give rise to a

federal question . . . that may later come here.’” Id.

(alteration in original) (quoting Cox, 420 U.S. at 480).

That assumption cannot be made here. Gasper’s

pending constitutional challenges could plausibly

create additional federal questions that may later

come to this Court.

The third Cox category arises when “the federal

claim has been finally decided, with further

proceedings on the merits in the state courts to come,

but in which later review of the federal issue cannot

be had, whatever the ultimate outcome of the case.”

Cox, 420 U.S. at 481. This scenario arose in New York

v. Quarles, 467 U.S. 649 (1984), in which the

prosecution sought certiorari for a suppression order

14

prior to trial. Id. at 651. Future review of this

suppression order was not possible: “[S]hould the

State convict respondent at trial, its claim that

certain evidence was wrongfully suppressed will be

moot. Should respondent be acquitted at trial, the

State will be precluded from pressing its federal claim

again on appeal.” Id. at 651 n.1.

Thomas was distinguishable from Quarles. If the

State of Florida prevailed on the Chimel issue, then

the Belton claim would be moot. Thomas, 532 U.S. at

780. If Florida lost the Chimel issue, however, then

“the question of suppression would be finally decided

by the Florida courts, and the State could then seek

certiorari in this Court” and “obtain review of both the

Belton issue and the Chimel issue.” Id. Gasper faces

the same situation. If he succeeds in suppressing the

CSAM recovered from his phone on an alternative

basis, then the Wisconsin Supreme Court’s

application of the private search doctrine becomes

moot. If he loses, then the issue of suppression is

finally decided, and he can seek certiorari on all

Fourth Amendment claims.

The fourth and final Cox category applies only in

very particular circumstances. Cox described this

category as follows:

[W]here the federal issue has been finally

decided in the state courts with further

proceedings pending in which the party

seeking review here might prevail on the

merits on nonfederal grounds, thus rendering

unnecessary review of the federal issue by

this Court, and where reversal of the state

15

court on the federal issue would be preclusive

of any further litigation on the relevant cause

of action rather than merely controlling the

nature and character of, or determining the

admissibility of evidence in, the state

proceedings still to come.

Cox, 420 U.S. at 482–83. This Court will grant

certiorari in these circumstances only “if a refusal

immediately to review the state court decision might

seriously erode federal policy.” Id.

These circumstances are not present here. If

Gasper were to prevail in this Court, his prosecution

would continue because the CSAM files from his

phone underlying his charges would not be

suppressed. Not even the two justices who accepted

Gasper’s private

search doctrine argument

determined that the CSAM from Gasper’s phone had

to be suppressed. Pet. App. 61a ¶ 91, 89a ¶ 137. As a

result, the trial court would still need to decide

Gasper’s pending suppression challenge to the CSAM

from his phone. Moreover, Gasper “can make no claim

of serious erosion of federal policy that is not common

to all run-of-the-mine decisions suppressing evidence

in criminal trials.” Thomas, 532 U.S. at 780.

For these reasons, the decision of the Wisconsin

Supreme Court for which Gasper seeks a writ of

certiorari is not a final judgment under 28 U.S.C.

§ 1257(a). This Court should therefore deny certiorari

for lack of jurisdiction.

16

II.

GASPER’S PETITION PROVIDES A POOR

VEHICLE IN WHICH TO ADDRESS AN

ISSUE THAT HAS DIVIDED COURTS.

Even if this Court has jurisdiction, certiorari

remains unwarranted. At a minimum, this Court

should deny certiorari on Gasper’s questions

regarding his reasonable expectation of privacy and

the good faith exception because the Wisconsin

Supreme Court did not address either issue.

Although the application of the private search

doctrine in these circumstances has divided courts,

Gasper’s petition is ill-suited for resolving that split

because the issue is not dispositive. The Wisconsin

Supreme Court unanimously concluded that Gasper

was not entitled to the original suppression order that

excluded not only the video attached to the CyberTip,

but also all CSAM recovered from his phone that form

the basis for his charges. Gasper does not provide any

reason to conclude that the CSAM recovered from his

phone would be excluded if he prevailed on the private

search doctrine in this Court.

In addition, Gasper’s petition presents a poor

vehicle to address the split because this Court has an

alternative basis to affirm. Gasper cannot establish

that the Fourth Amendment applied to the video

attached to the CyberTip because he cannot prove his

subjective expectation of privacy and he does not

assert a property interest in the video.

17

A.

This Court should not grant certiorari on

two questions unaddressed by the

Wisconsin Supreme Court.

This Court should deny certiorari for Gasper’s

first and third questions about his reasonable

expectation of privacy and the good faith exception,

respectively, because the Wisconsin Supreme Court

did not address either issue. Pet. i; Pet. App. 33a–35a

¶¶ 47–50. The Wisconsin Supreme Court addressed

only the private search doctrine. Pet. App. 33a ¶ 46.

This Court is “a court of review, not of first view.”

Smith v. Arizona, 602 U.S. 779, 801 (2024) (quoting

Cutter v. Wilkinson, 544 U.S. 709, 718 n.7 (2005)).

This Court should decline to be “the pioneer court” to

address either Gasper’s reasonable expectation of

privacy or the good faith exception in the first

instance. Id.

Although the Wisconsin Court of Appeals decided

this appeal based on Gasper’s failure to prove his

reasonable expectation of privacy, the Wisconsin

Supreme Court vacated that decision without

addressing the issue. Pet. App. 5a ¶ 6 n.6. Moreover,

this Court’s jurisdiction is limited to final judgments

issued “by the highest court of a State in which a

decision could be had.” 28 U.S.C. § 1257(a). For either

reason, this Court’s review is limited to the Wisconsin

Supreme Court’s decision.

18

B.

Gasper has not shown that a victory in

this Court on the private search doctrine

question will have any practical effect.

As the Wisconsin Supreme Court noted, whether

the private search doctrine applies when an ESP

reports a file as CSAM based on hash-value scanning

without viewing the file has divided courts. Compare

Reddick, 900 F.3d at 637–38; United States v. Miller,

982 F.3d 412, 417–18 (6th Cir. 2020) (concluding that

the private search doctrine applies) with United

States v. Wilson, 13 F.4th 961, 971–75 (9th Cir. 2021);

United States v. Maher, 120 F.4th 297, 312–20

(2d Cir. 2024) (concluding that the private search

doctrine did not apply). Pet. App. 21a–22a ¶ 33 &

n.19.3

The Wisconsin Supreme Court joined three state

courts in following the reasoning of Reddick and

Miller. Pet. App. 21a–22a ¶ 33 & n.19. Since then, a

divided panel of the Fourth Circuit sided with Wilson

and Maher. See United States v. Lowers, 170 F.4th

134, 156 (4th Cir. 2026) (“[W]e align ourselves with

the Second and Ninth Circuits.”); id. at 161 (King, J.,

concurring in the judgment) (“I would simply join the

3 When an ESP employee does view the flagged file, courts

agree that the private search doctrine applies. See United States

v. Bebris, 4 F.4th 551, 562 (7th Cir. 2021); United States v.

Ringland, 966 F.3d 731, 737 (8th Cir. 2020); United States v.

Powell, 925 F.3d 1, 6 (1st Cir. 2018); see also United States v.

Meals, 21 F.4th 903, 908 (5th Cir. 2021) (reaching this conclusion

with respect to NCMEC while assuming NCMEC to be a

government actor).

19

Fifth and Sixth Circuits and rule that the ‘private

search doctrine’” applies.).4

Gasper’s petition does not present this Court with

the right opportunity to resolve this split. If Gasper

were to prevail on the private search doctrine, he

would obtain only a symbolic victory. The CSAM files

that form the basis for his charges would remain

unexcluded.

Gasper obtained a sweeping suppression victory

in the Wisconsin trial court. The trial court excluded

all CSAM evidence as fruit of the poisonous tree,

including the ten CSAM files recovered from Gasper’s

phone. Pet. App. 107a. By excluding the ten CSAM

files from Gasper’s phone, the trial court excluded the

evidence that provided the factual basis for Gasper’s

charges, which included ten counts of possessing child

pornography. Pet. App. 7a ¶¶ 9–10. Gasper has failed

to show that he can exclude those ten CSAM files if

he convinces this Court that the private search

doctrine does not apply.

No justice on the Wisconsin Supreme Court

believed that Gasper was entitled to exclude the ten

CSAM files that provided the basis for his charges.

The two justices who agreed with Gasper that the

private search doctrine should not apply nonetheless

shared this conclusion. Justice Dallet argued that no

evidence should be excluded because the good faith

exception to the exclusionary rule applied. Pet. App.

4 Gasper does not appear to be aware of Lowers. The Fourth

Circuit decided Lowers one month before Gasper filed his

petition.

20

60a–61a ¶¶ 90–91. Justice Crawford argued that the

video should be excluded because the good faith

exception did not apply, Pet. App. 87a–89a ¶¶ 135–

37, but she determined that the CSAM files obtained

from Gasper’s phone pursuant to a search warrant

“need not be excluded,” Pet. App. 89a ¶ 137. Justice

Crawford reasoned that the search warrant for

Gasper’s phone was supported by sufficient untainted

evidence. Pet. App. 88a–89a ¶ 137.

Gasper argues that the good faith exception

should not apply, but he does not explain how that

leads to the exclusion of the ten CSAM files from his

phone. Pet. 28–31. He does not address Justice

Crawford’s conclusion that the ten CSAM files from

his phone should not be excluded even if the good faith

exception does not apply. Pet. App. 87a–89a ¶¶ 135–

37.

Thus, Gasper presents this Court only with an

academic exercise. This Court avoids issuing advisory

opinions. Michigan v. Long, 463 U.S. 1032, 1040–41

(1983). Because resolution of the private search

doctrine question would have no practical effect for

Gasper, this Court should deny certiorari.

C.

Gasper cannot prove that the Fourth

Amendment applies to the video on this

record.

Gasper’s petition fails to provide an opportunity

to resolve the split in authorities regarding the

private search doctrine for an additional reason.

Gasper cannot prove that his Fourth Amendment

rights were implicated when the detective viewed the

21

video attached to the CyberTip. The record precludes

him from establishing his subjective expectation of

privacy in the video, and he has never argued that he

has a property based Fourth Amendment interest.

These omissions doom Gasper’s Fourth Amendment

challenge and provide an alternative basis to affirm

the Wisconsin Supreme Court.

A person can obtain the protection of the Fourth

Amendment by “demonstrat[ing] that he personally

has an expectation of privacy in the place searched,

and that his expectation is reasonable.” Minnesota v.

Carter, 525 U.S. 83, 88 (1998) (citing Rakas v. Illinois,

439 U.S. 128, 143–44 & n.12 (1978)). Disputes about

the applicability of the Fourth Amendment frequently

turn on whether the claimed expectation of privacy is

legitimate or objectively reasonable. See, e.g., Byrd v.

United States, 584 U.S. 395, 402–10 (2018). But the

objective reasonableness of a claimed expectation of

privacy, alone, is not sufficient to trigger the Fourth

Amendment. The person claiming an expectation of

privacy must also demonstrate an actual or subjective

expectation of privacy. Carter, 525 U.S. at 88;

California v. Ciraolo, 476 U.S. 207, 211 (1986).

Gasper cannot prove his subjective expectation of

privacy in the video. Snapchat’s terms of service

“specifically ‘banned [CSAM]’ and informed its users

that Snapchat was actively scanning for CSAM on its

platform.” Pet. App. 9a ¶ 13 (alteration in original).

Snapchat’s policies also informed users that it would

report CSAM to NCMEC and law enforcement. Pet.

App. 9a ¶ 13. Gasper agreed to these policies. Pet.

App. 105a ¶ 28. These policies regarding CSAM

22

“vitiated any subjective expectation of privacy

[Gasper] might have had.” Pet. App. 105a ¶ 28.

Gasper failed to provide any admissible evidence

that he possessed a subjective expectation of privacy

despite Snapchat’s terms to the contrary. “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.” Pet. App. 101a

¶ 20. He attempted to submit an affidavit attesting to

his subjective expectation of privacy, but the trial

court excluded it. Pet. App. 101a ¶ 20 n.7. On appeal,

Gasper “abandoned any effort to rely on the affidavit.”

Pet. App. 101a ¶ 20 n.7. Given this state of the record,

Gasper cannot prove a subjective expectation of

privacy. See United States v. Dixon, 137 F.4th 592,

602 (7th Cir. 2025) (“[I]t is almost impossible to find a

privacy interest without an affidavit or testimony

from the defendant.”).

An

individual

may

claim

the Fourth

Amendment’s protection without proving a

reasonable expectation of privacy. The reasonable

expectation of privacy test “supplements, rather than

displaces,

‘the

traditional

property-based

understanding of the Fourth Amendment.’” Byrd, 584

U.S. at 403 (quoting Florida v. Jardines, 569 U.S. 1,

11 (2013)). Gasper, however, has never argued that he

has a property interest in the video that triggers the

Fourth Amendment. Gasper has consistently argued

only that he “had a reasonable expectation of privacy

because he used a cell phone to access Snapchat,” Pet.

App. 13a ¶ 21 n.13; see Pet. 10–21.

23

Gasper’s inability to prove that he had a Fourth

Amendment interest in the video attached to the

CyberTip is dispositive of his Fourth Amendment

challenge. Because of this alternative basis for

affirmance, Gasper’s petition does not present an

opportunity to decide the private search doctrine

issue that has divided courts.

III.

THE WISCONSIN SUPREME

DECISION IS SOUND.

COURT’S

This Court need not grant certiorari for the

additional reason that the Wisconsin Supreme Court

correctly applied the private search doctrine.

The private search doctrine reflects the fact that

the Fourth Amendment provides “rights against the

government,” not private parties. Hiibel v. Sixth Jud.

Dist. Ct. Nev., Humboldt Cnty., 542 U.S. 177, 187

(2004). Once a private party has searched an item, the

owner’s “expectation of privacy” in that item “has . . .

been frustrated” such that the owner no longer has a

“legitimate expectation of privacy.” Jacobsen, 466

U.S. at 117, 119–20. A government agent may “view[ ]

what a private party ha[s] freely made available for

his inspection” without offending the Fourth

Amendment. Id. at 119.

The Wisconsin Supreme Court relied on Jacobsen.

In Jacobsen, Federal Express employees called law

enforcement after accidentally damaging a package

and discovering a tube containing baggies of white

powder inside the package. Jacobsen, 466 U.S. at

111–12. The Federal Express employees repackaged

the box. Id. at 111. DEA agents responded, reopened

24

the package, reopened the tube, and tested the white

powder, which tested positive for cocaine. Id. at 111–

12. Jacobsen concluded that the reopening of the

package did not violate the Fourth Amendment. Id. at

119. Because there was a “virtual certainty that

nothing else of significance was in the package, . . . .

it hardly infringed respondents’ privacy for the agents

to reexamine the contents of the open package by

brushing aside a crumpled newspaper and picking up

the tube.” Id. “The agent’s viewing of what a private

party had freely made available for his inspection did

not violate the Fourth Amendment.” Id.

The Wisconsin Supreme Court applied the private

search doctrine because there was a virtual certainty

that the detective’s viewing of the video would

“disclose nothing more than what [Snapchat’s] search

ha[d] revealed.” Pet. App. 33a ¶ 46 (citation omitted).

The Wisconsin Supreme Court noted that hash value

scanning “detects CSAM with ‘almost absolute

certainty.’” Pet. App. 20a ¶ 32 (quoting Reddick, 900

F.3d at 639). The PhotoDNA scan used hash values to

identify Gasper’s 16-second video as CSAM, and the

detective “testified that he had never seen a file

identified by PhotoDNA as CSAM be anything other

than CSAM.” Pet. App. 21a ¶ 32. Because of this

virtual certainty, the detective did not expand

Snapchat’s private search when he viewed the video

that Snapchat had freely made available for his

inspection. Pet. App. 32a–33a ¶¶ 45–46.

The Wisconsin Supreme Court persuasively

explained why Wilson and Maher (and by extension

Lowers) are flawed. “[T]hose courts concluded that

expansion of the private search occurs when law

25

enforcement is able to view more precise details about

the content of the videos, rather than whether law

enforcement was virtually certain to view anything

else of significance.” Pet. App. 27a–28a ¶ 38. This

approach led to a highly subjective inquiry aimed at

the investigator’s mind rather than the scope of the

antecedent private search, which was inconsistent

with Jacobsen. Pet. App. 29a–31a ¶¶ 41–42.

The Wisconsin Supreme Court’s holding leads to

a more reasonable investigative process than Wilson

and Maher. Under the Wisconsin Supreme Court’s

approach, an investigator can verify that a CyberTip

truly reported CSAM before taking further

investigative steps. Pet. App. 31a–32a ¶ 44. Maher

expressly contemplated the opposite sequence of

events. While Maher refused to apply the private

search doctrine to a single file flagged as CSAM

attached to a CyberTip, it nonetheless concluded that

the CyberTip, alone, would have “demonstrated

probable cause to support warrants for [the

government’s] own searches of Maher’s Google

accounts and residence.” Maher, 120 F.4th at 319

(emphasis added).

Maher’s result is puzzling. It is more reasonable

to enable officers to view the flagged video before

obtaining a search warrant for the subject

individual’s home to spare innocent individuals from

the significant invasion occasioned by a search of the

home. In this way, Wilson, Maher, and Lowers run

afoul of the “ultimate touchstone” of the Fourth

Amendment: “reasonableness.” Brigham City v.

Stuart, 547 U.S. 398, 403 (2006).

26

Justice

Crawford’s

opinion

puts

the

unreasonableness of this result in stark relief. Justice

Crawford characterized the flagged video as merely

“potential CSAM,” Pet. App. 77a ¶ 119, and she found

that the majority’s application of the private search

doctrine “creates troubling precedent.” Pet. App. 81a

¶ 124. Yet Justice Crawford also concluded that the

CyberTip, alone, “can provide probable cause for a

search warrant, even when the investigator does not

view the flagged file.” Pet. App. 88a ¶ 136. The

investigative process contemplated by Justice

Crawford—and Wilson, Maher, and Lowers—is far

more “troubling” for individual privacy than the

Wisconsin Supreme Court’s application of the private

search doctrine. Pet. App. 81a ¶ 124. An objectively

reasonable person who was the subject of an

erroneous report of CSAM would surely prefer that

the investigator view the reported file and discover

that it is not CSAM rather than obtain and execute a

search warrant for the person’s house without

viewing the reported file.

This Court need not grant certiorari to the

Wisconsin Supreme Court’s decision that correctly

applied Jacobsen and reached a reasonable result.

27

CONCLUSION

The petition for certiorari should be denied.

Dated at Madison, Wisconsin this 1st day of June

2026.

Respectfully submitted,

JOSHUA L. KAUL

Attorney General of Wisconsin

MICHAEL J. CONWAY

Assistant Attorney General

JOHN A. BLIMLING

Assistant Attorney General

Counsel of Record

Attorneys for Respondent

Wisconsin Department of Justice

Post Office Box 7857

Madison, Wisconsin 53707-7857

(608) 267-3519

(608) 294-2907 (Fax)

john.blimling@wisdoj.gov