[Cite as State v. Rykena,
2025-Ohio-5136.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 114702
v. :
DANIEL RYKENA, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: November 13, 2025
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-24-692104-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Alaina Hagans and Christine M. Vacha,
Assistant Prosecuting Attorneys, for appellee.
Goldberg Dowell and Associates LLC and Adam Parker,
for appellant.
DEENA R. CALABRESE, J.:
Defendant-appellant Daniel Rykena (“Rykena”) appeals the trial court’s
denial of his motion to suppress 12 images containing child pornography that
Rykena uploaded to Snapchat. For the reasons stated below, we find that the trial
court did not err when it found that Snapchat is not a state actor and that Rykena
did not have an expectation of privacy in the 12 images he uploaded to the platform.
Therefore, we affirm the trial court’s decision denying Rykena’s motion to suppress
evidence.
I. Relevant Facts and Procedural History
This appeal stems from the trial court’s denial of Rykena’s motion to
suppress evidence provided by Snapchat to the National Center for Missing and
Exploited Children (“NCMEC”), who then provided it to law enforcement. As
described in more detail below, Rykena uploaded 12 images to the Snapchat
application. Snapchat reviewed the images and determined Rykena was “engag[ing]
in activity relating to online child exploitation” then reported the offense to NCMEC.
NCMEC then forwarded the images to the Internet Crimes Against Children Task
Force (“ICAC”) with the Cuyahoga County Prosecutor’s Office, who used them to
secure a subpoena and two search warrants.
A. Indictment
On May 21, 2024, Rykena was indicted by a Cuyahoga County Grand
Jury on 29 counts of pandering sexually oriented matter involving a minor or
impaired person in violation of R.C. 2907.322(A)(1), and four counts of illegal use
of a minor or impaired person in nudity-oriented material or performance in
violation of R.C. 2907.323(A)(1). All 33 charges are felonies of the second degree.
On June 20, 2024, Rykena filed a motion to suppress seeking
suppression of all information obtained by the State, both information received from
third parties and information later seized during the execution of search warrants.
The motion argued, in relevant part, that Snapchat and NCMEC are state actors.
On July 22, 2024, the trial court held a hearing on Rykena’s motion to
suppress. The testimony at the hearing was as follows.
B. Stephen Dufresne
Stephen Dufresne (“Dufresne”) testified that he is employed as a law
enforcement outreach lead at Snap, Inc., the parent company of Snapchat. He
described Snapchat as “a communications application where users can
communicate, exchange photos and videos and text communications.” He stated
that Snapchat maintained community guidelines for the safety of their community,
for the protection of the brand and company, and to prevent illegal content such as
images on their platform. Snapchat learns of illegal images uploaded to its platform
either by reporting from third parties or when the images are detected by Snapchat’s
proactive detection software, i.e., hash matching. He did not know how Snapchat
learned of the 12 images Rykena uploaded to the platform. (July 22, 2024 tr. 73-
88.)
C. Susan Lafontant
Susan Lafontant (“Lafontant”) testified that she is a record specialist for
the exploited children’s division of NCMEC. Through its CyberTipline, NCMEC
receives tips regarding child exploitation from the public or electronic service
providers (“ESP”) such as Facebook, Snapchat, Instagram, or Google.
Lafontant explained hash matching. She explained that “every video or
file has what is known as a hash, which is a unique digital fingerprint[,] an
alphanumeric sequence. This is unique to every single image and video similar to
how every human has a unique fingerprint. [NCMEC is] able then to match the
images in this report in [their] system[.]” The State described a hash match in
simpler terms, explaining that the images “went through [NCMEC’s] automated
system and dinged as an image that is known to [NCMEC] to be apparent child
pornography.” (July 22, 2024 tr. 103.)
On October 15, 2021, NCMEC first became involved with this case when
it received a CyberTipline report from Snapchat of apparent child pornography.
Twelve files were uploaded with the report. The report included hash-matching data
for each of the images, meaning each of the images’ numeric sequences was
determined to match with images that were previously determined to contain child
pornography, and indicated that the images underwent independent review at
Snapchat. The report also provided an incident time of October 14, 2021, a phone
number, date of birth, email address, screen name, and IP address associated with
the user. The report categorized the images as “a prepubescent child engaged in a
sex act.”
NCMEC conducted their own investigation. NCMEC personnel did
not independently determine the images contained child pornography but did
conduct hash matching. NCMEC searched the IP address and phone number in
publicly available open-source databases to find the location where they were
resolving. That search revealed a possible location of Cleveland, Ohio and Cox
Communication. The information from Snapchat and NCMEC was then made
available on a database to law enforcement, in this case the Cuyahoga County
Prosecutor’s Office Ohio ICAC. (July 22, 2024 tr. 89-127.)
D. Marisa Pawlowski
Marisa Pawlowski (“Pawlowski”) testified that she is a special
investigator for the Ohio ICAC task force with the Cuyahoga County Prosecutor’s
Office. In the course of her employment, she received a CyberTipline report from
NCMEC in October 2021. The tip included 12 files that Pawlowski viewed and
identified as containing child exploitation material. The tip also included identifiers
such as an IP address, phone number, date of birth, and email address for a
Snapchat account with the username “glacialphantom.”
Pawlowski used the information provided by NCMEC to obtain
additional information. First, Pawlowski sent a subpoena to Cox Communications
and, as a result, learned that the IP address belonged to Rykena in Parma, Ohio.
Pawlowski also sent a content warrant to Snapchat to obtain information regarding
the account. Lastly, she obtained a search warrant authorizing law enforcement to
search Rykena’s residence for electronic devices. The execution of the residential
search warrant resulted in the seizure of child sexual abuse material. (July 22, 2024
tr. 53-72.)
On July 31, 2024, the trial court denied Rykena’s motion to suppress.
The court stated the following:
The Fourth Amendment of the United States Constitution protects
individuals from unreasonable search and seizures and requires
warrants to be issued upon probable cause.
Additionally, when we introduce social media, we explore the
individual’s expectation of privacy as well.
Defendant has asked the Court to review the issue in the context as
outlined below: Is the social media platform Snapchat a state actor,
whether NCMEC, The National Center for Missing and Exploited
Children, is a state actor, and did ICAC, Internet Crimes Against
Children, investigate or issue valid subpoenas and search warrants.
Snapchat. Testimony was heard from the Snapchat Incorporated
representative Steven Dufresne, D-u-f-r-e-s-n-e, and Stephen is S-t-e-
p-h-e-n. Testimony received was that they’re not law enforcement
trained. We had a review of the terms and services of the community
guidelines, Exhibits 5 and 6. Snapchat is a public platform.
Snapchat received the information and then forwarded it to NCMEC.
Based on the information of what is rendered in the testimony, the
Court finds Snapchat is not a state actor.
NCMEC. Testimony was received from NCMEC representative Susan
Lafontant, L-a-f-o-n-t-a-n-t. Testimony was received that they are not
law enforcement trained. She was the record specialist in the section
for exploited children. NCMEC is a private, non-profit organization.
They do receive funding from the government as well as private
organizations. She was able to explain the process of receiving cyber
tip information from platforms, the ESP or electronic service such as
Snapchat. The files, and there were 12, were not reviewed by NCMEC.
Counsel made reference to a case United States of America versus
Walter Ackerman, 831 F.3rd 1292, 1295 to 1308. That’s a Tenth Circuit
decision wherein counsel and Mr. Rykena indicated that NCMEC was
found a state actor. The Court did review that case, and the Court finds
that that case is not analogous to the case before the Court. The Court
finds that NCMEC was not a state actor.
There was also some allegations regarding the hash matching that’s
done by AI. Counsel failed to provide information that reliance on AI
is contrary to Ohio law.
This takes us to the review of the subpoena and the search warrants.
Special Investigator Cuyahoga County Prosecutor’s Office Internet
Crimes Against Children Task Force Representative Pawlowski was
rendered wherein she reviewed the process of obtaining the
information from NCMEC, the process she went through with regards
to requesting the subpoena and the subsequent search warrants.
There was an issue brought before the Court with regard to the
subpoena, and counsel believed that it was overbroad, but this Court
found that counsel failed to really support sufficiently as it relates to
this case that issue with regards to being overbroad.
The next issue came about the search warrants. Counsel alleged
improper procedures in obtaining search warrants. There were two
search warrants. One was issued by [a trial court judge] and [a second
trial court judge issued the other]. There was allegations again
presented to this court with regards to how those search warrants were
acquired. The Court did review the search warrants. There was no
evidence given to this Court that there were improper procedures in
obtaining the search warrants, so I didn’t find anything to support the
allegation.
...
The Court did review the subpoenas and the search warrant. They were
Exhibits 2, 3 and 4, and in the Court’s review of those documents, the
Court did not find anything that’s inappropriate and believes that the
warrants were secured on probable cause.
The motion to suppress is therefore denied.
(July 31, 2024 tr. 152-157.)
On October 31, 2024, Rykena entered a plea of no contest to the
indictment and was found guilty as charged on all counts. The trial court referred
Rykena for a presentence investigation. On December 4, 2024, a sentencing hearing
was held and Rykena was sentenced to an aggregate of 8 to 12 years of imprisonment
and was determined to be a tier II sex offender.
Rykena appeals the trial court’s denial of his motion to suppress,
raising a single assignment of error for our review:
The trial court erred in denying [Rykena’s] motion to suppress.
II. Law and Analysis
In his single assignment of error, Rykena argues that the trial court
erred when it denied his motion to suppress. He specifically argues that Snapchat
and NCMEC were government actors and as such conducted unlawful, warrantless
searches.
The Fourth Amendment to the United States Constitution states:
The right of the people to be secure in their persons, houses, papers,
and effects, against unreasonable searches and seizures, shall not be
violated, and no Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly describing the place
to be searched, and the persons or things to be seized.
The Ohio Supreme Court has held that in felony cases, Ohio Const.,
art. I, § 14 provides the same protection as the U.S. Const., amend. IV. See State v.
Smith, 2009-Ohio-6426, ¶ 10, fn. 1.
Appellate review of a motion to suppress involves a “mixed question
of law and fact.” State v. Burnside, 2003-Ohio-5372, ¶ 8. The trial court is “in the
best position to resolve factual questions and evaluate the credibility of witnesses.”
Id., citing State v. Mills,
62 Ohio St.3d 357, 366 (1992). “[A]n appellate court must
accept the trial court’s findings of fact if they are supported by competent, credible
evidence.”
Id., citing State v. Fanning,
1 Ohio St.3d 19 (1982). “[T]he appellate
court must then independently determine, without deference to the conclusion of
the trial court, whether the facts satisfy the applicable legal standard.”
Id., citing
State v. McNamara,
124 Ohio App.3d 706 (4th Dist. 1997).
A. Government Actors
Rykena asserts that Snapchat and NCMEC were state actors who
conducted unlawful, warrantless searches. Rykena’s appeal does not dispute any
actions taken by ICAC, only that their subsequent searches were “the fruit of the
poisonous tree.”
The Fourth Amendment protects against unlawful governmental
searches and seizures but is not a limitation on searches by private entities. Burdeau
v. McDowell, 256 U.S. 465, 475 (1921). However, if a private entity acts as an agent
or instrument of the government then the Fourth Amendment would apply.
Coolidge v. N.H.,
403 U.S. 443, 487 (1971).
Courts have determined that ESPs such as Snapchat are not state
actors. In State v. Ryan, 2018-Ohio-4739, ¶ 16 (5th Dist.), the Fifth District
determined that AOL was not a state actor when it flagged an email with
attachments containing child pornography and reported the incident to NCMEC,
even though AOL was mandated by federal law to report such images. The Ryan
Court noted that federal courts have uniformly rejected arguments that courts
should deem private entities to be state actors when they comply with mandatory
reporting requirements imposed by federal laws or voluntarily scan for illegal
images.
Id. See United States v. Miller,
982 F.3d 412, 426 (6th Cir. 2020) (“Google’s
hash-value matching [] did not implicate the Fourth Amendment[]” when Google
sent a CyberTipline report of child pornography to NCMEC); United States v.
Guard,
2025 U.S. App. LEXIS 23364, *26 (2d Cir. 2025) (Kik not a state actor when
it searched user’s account for child pornography and provided the material it found
in his accounts to NCMEC); United States v. Rosenow,
50 F.4th 715, 730-731 (9th
Cir. 2022) (Dropbox not a state actor simply based on federal reporting obligations);
United States v. Ringland,
966 F.3d 731, 736 (8th Cir. 2020) (Searches by Google
are private despite requirement that it report child pornography to NCMEC); United
States v. Rosenschein,
2020 U.S. Dist. LEXIS 211433, *33-37 (D.N.M. Nov. 12,
2020) (Chatstep and Microsoft not state actors for Fourth Amendment purposes).
Rykena has not presented any novel arguments that convince us to deviate from
these persuasive cases.
Rykena also contends that he has an expectation of privacy in the
images he uploaded to Snapchat. The Supreme Court addressed searches by private
parties in United States v. Jacobsen, 466 U.S. 109 (1984). In Jacobsen, employees
of a private freight carrier were examining a damaged package. The manager cut
open a silver tube inside the package and discovered a white powdery substance in
the tube. The employees notified a federal agent, who then conducted chemical
testing of the substance, which revealed that it was cocaine.
Id. at 111. The Jacobsen
Court determined that the initial search, i.e., the manager cutting open the silver
tube inside the damaged package, did not violate the Fourth Amendment because it
was performed by a private party.
Id. at 115. When determining whether the federal
agent’s chemical testing was a search, the court analyzed whether the scope of the
agent’s search was outside the scope of the private search.
The Jacobsen Court found the following regarding the disclosure of
private information to third parties and the scope of any subsequent government
search:
This standard follows from the analysis applicable when private parties
reveal other kinds of private information to the authorities. It is wellsettled that when an individual reveals private information to
another, he assumes the risk that his confidant will reveal that
information to the authorities, and if that occurs the Fourth
Amendment does not prohibit governmental use of that information.
Once frustration of the original expectation of privacy occurs, the
Fourth Amendment does not prohibit governmental use of the nownonprivate information. “This Court has held repeatedly that the
Fourth Amendment does not prohibit the obtaining of information
revealed to a third party and conveyed by him to Government
authorities, even if the information is revealed on the assumption that
it will be used only for a limited purpose and the confidence placed in a
third person will not be betrayed.” U.S. v. Miller, 425 U.S. 435, 443
(1976). The Fourth Amendment is implicated only if the authorities use
information with respect to which the expectation of privacy has not
already been frustrated.
(Emphasis added.) Jacobsen at 117.
In this case, Rykena argues that he had an expectation of privacy in
the 12 images he uploaded to Snapchat. However, when he revealed those images
to Snapchat, a third party, his expectation of privacy in those images was frustrated
pursuant to Jacobsen.
Rykena also contends that NCMEC conducted an unlawful
warrantless search and/or was a government actor. However, we find that any
search conducted by NCMEC was within the scope of Snapchat’s search. “Under the
private-search doctrine, the government does not conduct a Fourth Amendment
search when there is a ‘virtual certainty’ that its search will disclose nothing more
than what a private party’s earlier search has revealed.” United States v. Miller, 982
F.3d 412, 417-418 (6th Cir. 2020), quoting Jacobsen,
466 U.S. at 119 (1984). As
discussed above, Snapchat conducted hash matching and independent verification
of the 12 images uploaded to their platform. NCMEC conducted hash-matching
analyses of the same images but no independent verification. The only additional
search conducted by NCMEC involved a search of the IP address and phone number
provided by Snapchat in publicly available open-source databases. “In order to have
standing to challenge a search or seizure, the defendant must have a reasonable
expectation of privacy in the evidence seized.” State v. Jackson,
2004-Ohio-3206,
¶ 8, citing Alderman v. United States,
394 U.S. 165, 171-172 (1969). Rykena does
not dispute that he did not have an expectation of privacy in the publicly available
information NCMEC’s uncovered. We find that none of NCMEC’s actions amount
to a search that exceeded the scope of Snapchat’s search and thus there was no
infringement of Rykena’s Fourth Amendment rights. Therefore, we need not
address whether NCMEC was a government actor.
We find that Snapchat is a private entity and thus did not conduct an
unlawful, warrantless search of images that Rykena uploaded to the platform. We
also find that NCMEC’s search was within the scope of any search conducted by
Snapchat and, thus, was not an unlawful, warrantless search. Rykena does not
dispute any subsequent searches conducted by ICAC. Therefore, Rykena’s sole
assignment of error is overruled.
We affirm the trial court’s decision denying Rykena’s motion to
suppress evidence.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution. The defendant’s
conviction having been affirmed, any bail pending appeal is terminated. Case
remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
DEENA R. CALABRESE, JUDGE
MICHELLE J. SHEEHAN, P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR
