                    IN THE COURT OF APPEALS OF IOWA

                                   No. 13-1111
                             Filed October 15, 2014

STATE OF IOWA,
     Plaintiff-Appellee,

vs.

BRANDON CLARK MANNING,
     Defendant-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Cerro Gordo County, Karen

Kaufman Salic, District Associate Judge.




      A defendant challenges his conviction for sexual exploitation of a minor.

AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Stephan J. Japuntich,

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, Mary A. Triick, Assistant Attorney

General, Carlyle Dalen, County Attorney, and Rachel A. Ginbey, Assistant

County Attorney, for appellee.



      Heard by Potterfield, P.J., and Tabor and Mullins, JJ.
                                             2



TABOR, J.

       A jury convicted Brandon Manning of sexual exploitation of a minor in

violation of Iowa Code section 728.12(3) (2011) based on his possession of illicit

images downloaded onto a flash drive.1 The flash drive came into the hands of

police by way of private citizens who found it in Manning’s tool bag and viewed

its contents before turning it over to authorities. Police opened the files on the

flash drive without obtaining a search warrant.

       Manning attacks his conviction on two fronts. First, he claims his right to

privacy was violated by the private party seizure and subsequent police search of

the flash drive. Second, he claims the State did not offer substantial evidence he

possessed the flash drive found in his tool bag.

       Because the federal and state constitutions only protect against

unreasonable search and seizure by state actors, and because the police search

did not exceed the scope of the private actors’ viewing of the flash drive, we

affirm the district court’s denial of the motion to suppress. In addition, because

the record contains ample evidence Manning knowingly possessed the

pornographic images of children saved on the flash drive, we will not disturb the

jury’s verdict.

I.     Background Facts and Proceedings

       In October 2012, Paul Nieman needed to borrow tools from his friend

Brandon Manning, but Manning was in jail. Nieman had used Manning’s tools in




1
 An investigator with training in forensic analysis of computers testified the “thumb drive”
or “flash drive” at issue in this case could be described as a digital storage device.
                                          3



the past and told Manning’s girlfriend, Patricia Pearce, he intended to borrow

them again. Nieman found the tool bag inside Manning’s truck.

        Inside the lining of the tool bag, Nieman found a flash drive. Because of

the way the flash drive was hidden, Nieman was “curious” about its contents, so

he plugged it into his laptop computer.       On the flash drive he saw what he

considered “indecent” photographs of children.        Nieman recalled the children

depicted were four to five years old and looked like they were engaging in sex

acts.

        Nieman then called Barb Corey, who had dated Manning for three years,

and told her he found a flash drive with “pictures of little kids on it.” Corey picked

up the drive from Nieman and “checked to see what all things were on it.” She

saw images of a “cartoon” portrayal of child pornography she had seen Manning

drawing while they were dating. Also on the flash drive, Corey saw sexually

explicit photographs of herself she remembered Manning taking and “a lot of

pictures of him in his apartment.” Corey testified she did not load any additional

images onto the flash drive before she turned it over to the Mason City police

officer Jason Hugi.

        Officer Hugi recalled Corey bringing in the flash drive on October 21,

2012. Corey told the officer she had received the drive from a friend of hers and

was “concerned that there were some pictures on there of her children,

pornographic pictures of her children.” Hugi took the flash drive to Investigator

Jeremy Ryal, who had specialized training in computers and child pornography.
                                         4



       Investigator Ryal placed the drive into his computer and the two officers

viewed the images.       The drive contained eighteen separate images of child

pornography, seventy-two sketched images of children engaged in sex acts, and

fifteen photos showing Manning’s face.       The images were all organized in a

folder titled “overtime work candy” and all appeared to be loaded to the drive on

the same day, February 20, 2012, around the same time of day. Officer Hugi

interviewed Manning about the drive. Manning denied ownership of the drive

containing the images.

       On March 27, 2013, the State charged Manning by trial information with

sexual exploitation of a minor, an aggravated misdemeanor. On May 31, 2013,

Manning’s counsel filed a motion to suppress the evidence on the flash drive,

alleging it was obtained in violation of his right against illegal searches under the

Fourth Amendment to the United States Constitution and article I, section 8 of the

Iowa Constitution. After a suppression hearing on June 3, 1013, the district court

overruled the motion to suppress, reasoning as follows:

              The discovery of this drive by Mr. Nieman and the viewing of
       it by Mr. Nieman and Ms. Corey was done without any knowledge
       of law enforcement, and without any intent on their part to assist
       law enforcement. The first law enforcement knew of these private
       searches was when Ms. Corey presented the drive to them and told
       them that she had concerns that it contained child pornography of
       her children.     At that point the private search had already
       uncovered the existence of illegal material on the thumb drive, and
       therefore the subsequent search by law enforcement was not
       unconstitutional under the federal or state Constitution.

       After the original proceedings resulted in a mistrial, a second trial began

on June 14, 2013. A jury found Manning guilty and the court sentenced him to

serve a prison term not to exceed two years. Manning now appeals.
                                         5



II.    Analysis

       Manning argues the district court erred in denying his motion to suppress

the evidence found on the flash drive, alleging the illicit images were the fruits of

an illegal warrantless search. He also argues the conviction is not supported by

sufficient evidence of possession. We will address each claim in turn.

       A.     Motion to Suppress

       1.     Ineffective Assistance of Counsel

       We first consider Manning’s claim his trial counsel was ineffective for filing

the motion to suppress outside the deadline without good cause. A motion to

suppress must be filed within forty days of arraignment.          Iowa R. Crim. P.

2.11(4). Manning was arraigned on April 4, 2013; but the motion to suppress

was not filed until May 31, 2013. The motion was filed fifty-eight days after

arraignment. Counsel did not give a reason for the late filing.

       We review ineffective-assistance-of-counsel claims de novo.          State v.

Showens, 845 N.W.2d 436, 440 (Iowa 2014). To succeed on his claim, Manning

must show counsel failed to perform an essential duty resulting in prejudice to

the defense. See Everett v. State, 789 N.W.2d 151, 158 (Iowa 2010). To prove

prejudice, Manning must show “a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.”

See Strickland v. Washington, 466 U.S. 668, 694 (1984). The claim fails if either

element is unproven. Anfinson v. State, 758 N.W.2d 496, 499 (Iowa 2008).

       We reject Manning’s claim on the prejudice prong. The district court noted

the motion’s untimeliness in its decision, but still ruled on the merits—finding the
                                        6



search to be legal under both the federal and state constitutions.        Manning

suffered no prejudice because the district court reached the merits of the motion

despite its untimeliness.   See generally State v. Ortiz, 766 N.W.2d 244, 250

(Iowa 2009).

      2.       Constitutionality of Police Action

      The district court denied Manning’s motion, finding the seizure of the flash

drive by private citizens and the viewing of its contents by those citizens and by

the police did not violate either the Fourth Amendment or article 1, section 8. On

appeal, Manning does not urge a different substantive standard for analyzing a

private search under the state provision than is applied by the United States

Supreme Court under the Fourth Amendment. We therefore apply the federal

standard in this case. See State v. Kern, 831 N.W.2d 149, 174 (Iowa 2013).

      We review claims of unreasonable search and seizure de novo,

independently evaluating the totality of circumstances.      State v. Watts, 801

N.W.2d 845, 850 (Iowa 2011). Manning divides his suppression claim into two

arguments. First, he asserts “[i]ntrustion by a non-governmental actor upon a

citizen’s legitimate expectation of privacy is a constitutional violation.” Second,

he contends “[l]aw enforcement’s accessing of the information contained on the

flash drive without a warrant” was a constitutional violation. We find no merit in

either argument.

               a.    The Private Seizure

      Manning starts by asserting he had a legitimate expectation of privacy in

the flash drive because it was stored in his tool bag in his parked truck. He
                                         7



distinguishes his circumstances from two cases relied on by the district court:

State v. Flynn, 360 N.W.2d 762 (Iowa 1985), and State v. Barrett, 401 N.W.2d

184 (Iowa 1987). In Flynn, the defendant buried evidence of his bookmaking

under peat moss on a golf course. 360 N.W.2d at 765. In State v. Barrett, an

incriminating journal was left in a restaurant.    401 N.W.2d at 190.      Manning

contends he did more to secure his privacy interests in the flash drive than the

defendants in Flynn and Barrett.

       It is true the supreme court considered the public nature of the places

where the evidence was found in Flynn and Barrett. See Barrett, 401 N.W.2d at

190 (“Given the public nature of the place where the journal was discovered and

examined by the restaurant employees we conclude that defendant’s

constitutional claims are no more meritorious than those rejected in State v.

Flynn . . . .”). But the adequacy of Manning’s effort to protect his privacy interest

in the flash drive is not the salient question here. Presupposing his expectation

of privacy in the flash drive, the threshold question is whether the actions of

Nieman, a private citizen, in finding the flash drive and examining at least some

of its contents, violated the Fourth Amendment.

       The Fourth Amendment does not apply to a search or seizure, even an

unreasonable one, carried out by a private individual who is not acting as a

government agent or with the knowledge or participation of a government official.

See United States v. Jacobsen, 466 U.S. 109, 113-14 (1984); Flynn, 360 N.W.2d

at 767. Manning does not claim, and the facts do no suggest, that Nieman was
                                         8



acting as an agent of the police or that the police knew about or participated in

Nieman’s seizure of the flash drive from the tool bag.

       The private search exception applies here. See United States v. Goodale,

738 F.3d 917, 921 (8th Cir. 2013). Nieman’s preview of the contents of the drive

was neither instigated by nor performed on behalf of the police. After discovering

“indecent” images of children on the flash drive, Nieman took the evidence to

Corey, another private citizen. Corey likewise viewed the contents of the flash

drive on her own accord, before turning it over to police.

       A private search, untainted by governmental involvement, implicates no

Fourth Amendment interest regardless of whether the search was accidental or

deliberate, reasonable or unreasonable, and regardless whether the search may

give rise to civil or criminal liability. Jacobsen, 466 U.S. at 115. “Our courts have

recognized this principle which differentiates private individuals who act on their

own and government agents.” State v. Knudsen, 500 N.W.2d 84, 85 (Iowa Ct.

App. 1993).     “Evidence obtained by an individual does not fall within the

exclusionary rule and is admissible in a trial.” State v. Holliday, 169 N.W.2d 768,

771–72 (Iowa 1969). Because constitutional protections against unreasonable

searches and seizures do not apply to private citizens acting without government

knowledge, Manning was not entitled to suppression based on the actions of

Nieman or Corey.

              b.     The Police Search

       Manning next argues once the police received the flash drive from Corey,

the officers needed to obtain a search warrant before viewing the images on it.
                                        9



Manning compares the flash drive to a cell phone and relies on Riley v.

California, 134 S. Ct. 2473, 2485 (2014) (holding in search-incident-to-arrest

case, officers needed warrant to search cell phone data).

      The State contends the police did not need a warrant to search the flash

drive as its contents were viewed by private individuals before being turned over

to police and the police reviewed the images on the drive in the same way as the

citizens did. The State’s position is supported by federal case law.

      When the initial invasion of the defendant’s expectation of privacy is

occasioned by the action of private parties, as was the case here, additional

invasions by the police “must be tested by the degree to which they exceeded

the scope of the private search.” Jacobsen, 466 U.S. at 115. In Jacobsen,

employees of a private freight carrier damaged a package and then opened it in

compliance with company policy on insurance claims.           Id. at 111.   They

discovered a tube with four plastic bags nested one inside the other; the

innermost bag contained six and one-half ounces of white powder. Id. The

employees called the Drug Enforcement Administration, and then replaced the

bags in the tube. Id. The DEA agents removed the bags, saw the powder, and

determined it was cocaine by field testing. Id. at 111-12. The Jacobsen court

concluded the DEA agent’s removal of the plastic bags from the tube and visual

inspection of their contents “enabled the agent to learn nothing that had not

previously been learned during the private search.” Id. at 120. The Court said

“[t]he advantage the Government gained thereby was merely avoiding the risk of

a flaw in the employee’s recollection,” and concluded the examination did not
                                          10



violate the Fourth Amendment because “[p]rotecting against the risk of

misdescription hardly advances any legitimate privacy interest.” Id. at 119. The

Court also found the field test was not a search as the action did not infringe “any

constitutionally protected privacy interest that had not already been frustrated as

the result of private conduct.” Id. at 126.

       Several jurisdictions have applied the principles of Jacobsen to computer

searches. For example, in United States v. Tosti, 733 F.3d 816, 823 (9th Cir.

2013), police searched a hard drive following the discovery of child pornography

by a CompUSA employee.           The Ninth Circuit found no Fourth Amendment

violation, stating, “[W]hen [the private individual] initially viewed Tosti’s pictures,

their content was discernable, and any expectation of privacy Tosti had in those

photographs was extinguished.” The Eight Circuit considered a similar question

in Goodale, where private parties brought the defendant’s laptop to the police

station to show officers the web history of teen pornography sites.            U.S. v.

Goodale, 738 F.3d 917, 920 (8th Cir. 2013). The Goodale court applied the

private search exception, emphasizing: “No evidence suggests that the officer’s

viewing went further than M.R.’s search.” Id. at 921.

       A similar result was reached by the Seventh Circuit, which held Illinois

police did not exceed the scope of a private search conducted by a sexual

assault victim and her mother when the police viewed images contained on

digital media devices provided to them by the women. Rann v. Atchison, 689

F.3d 832 (7th Cir. 2012). The Rann court adopted the Fifth Circuit’s reasoning in
                                             11



United States v. Runyan, 275 F.3d 449 (5th Cir. 2001). Analogizing digital media

storage devices to containers, the Fifth Circuit ruled police officers did

       [E]xceed the scope of a prior private search when they examine a closed
       container that was not opened by the private searches unless the police
       are already substantially certain of what is inside that container based on
       the statements of the private searches, their replication of the private
       search, and their expertise.

Runyan, 275 F.3d at 463. The Seventh Circuit held that because the victim and

her mother “knew the contents of both digital media devices they provided to the

police” the problem with exceeding the scope of the original search discussed in

Runyan was not implicated. Rann, 689 F.3d at 838 (noting “even if the police

more thoroughly searched the digital media devices than S.R. and her mother did

and viewed images that S.R. or her mother had not viewed, per the holding in

Runyan, the police search did not exceed or expand the scope of the initial

private searches”).

       Using these private search cases as a guide, we confront the question

whether the search by the Mason City police exceeded the scope of the

searches by Nieman and Corey. Corey presented the flash drive to Officer Hugi,

explaining her concern it contained images of child pornography. 2 The actions

by Officer Hugi and Investigator Ryal to access the contents of the flash drive

and to confirm it indeed contained images of illicit depictions of children did not

exceed the scope of the initial private searches. Because Nieman and Corey

saw the incriminating images on the drive, Manning’s constitutional expectation



2
  The police search of the flash drive upon receipt from a private citizen is a far different
situation from the search of a suspect’s cell phone seized by police incident to the
suspect’s arrest. Accordingly, we find Manning’s reliance on Riley to be misplaced.
                                         12



of privacy was already frustrated by the private searches. Under Jacobsen and

its progeny, the police action did not violate the Fourth Amendment.

Accordingly, we affirm the district court’s suppression ruling.

       B.     Knowing Possession

       Manning challenges the sufficiency of the evidence that he possessed the

child pornography. We review sufficiency of the evidence claims for corrections

of errors at law. State v. Romer, 832 N.W.2d 169, 174 (Iowa 2013). When

considering whether substantial evidence supports a conviction, we consider all

evidence, not merely the evidence supporting the verdict. State v. McFarland,

598 N.W.2d 318, 320 (Iowa 1999).          Viewing the evidence in the light most

favorable to the State, we must decide if the evidence could convince a rational

jury the defendant was guilty beyond a reasonable doubt. State v. Ross, 845

N.W.2d 692, 702 (Iowa 2014). “Direct and circumstantial evidence are equally

probative.” Iowa R. App. P. 6.904(3)(p).

       To convict Manning under section 728.12(3), the State was required to

prove two elements: (1) “On or about October 2012, the defendant knowingly

possessed a visual depiction” and (2) “That visual depiction included a person

under the age of 18 years engaging in a prohibited sexual act or the simulation of

a prohibited sexual act.” On appeal, Manning only challenges proof of the first

element.

       Manning points out that “during all relevant times” he was not in

possession of his truck, his tools or the flash drive. The State counters that proof

of actual possession is not necessary and its burden may be met by showing
                                       13



constructive possession.   See State v. Thomas, 847 N.W.2d 438, 442 (Iowa

2014). Constructive possession is a judicial construct in which “possession of

contraband [can] be inferred based on the location of the contraband and other

circumstances.” Id. at 443. (citing State v. Vance, 790 N.W.2d 775, 784 (Iowa

2010)).

      How to prove constructive possession depends on the nature of the place

where the evidence is discovered. When contraband is found in a place within

the exclusive possession of the accused, possession may be inferred. See State

v. Kern, 831 N.W.2d 149, 161 (Iowa 2013). But where more than one person

has access to the place where the contraband is found, the State must offer

additional proof tying the defendant to the contraband. Id. That additional proof

may take several forms, for instance: (1) incriminating statements by the

defendant; (2) incriminating actions upon police discovery of contraband among

or near the defendant’s belongings; (3) fingerprints on any packaging around the

contraband; and (4) any other circumstances linking the person to the

contraband. Thomas, 847 N.W.2d at 443.

      In this case both the location and the contents of the flash drive pointed to

Manning’s constructive possession. Because Nieman had borrowed Manning’s

tools before, he knew where to find them. The bag containing Manning’s tools

was stored inside Manning’s truck. According to Nieman, the drive was hidden in

the lining of Manning’s tool bag and it appeared to Nieman like “somebody had

put it there specially.” While the record contained testimony that other people

may have had access to Manning’s truck, a jury is “free to believe or disbelieve
                                       14



any testimony as it chooses and to give as much weight to the evidence as, in its

judgment, such evidence should receive.” See State v. Nitcher, 720 N.W.2d 547,

556 (Iowa 2006).

      Even if the jury was not entitled to infer Manning had exclusive access to

his truck and tool bag, the additional circumstances established that he

possessed the images on the flash drive.      The drive contained photographs

Manning had taken of himself in his apartment. The drive also contained images

of sketches drawn by the defendant.         It also contained sexually explicit

photographs Manning took of Corey when she was his girlfriend. Investigator

Ryal testified all of the incriminating images on the drive had a time stamp of

February 20, 2012 within a few minutes of 10 a.m., meaning it appeared as if all

the images were downloaded to the folder at the same time.

      Based on our review of the evidence in the record, we conclude the district

court properly denied Manning’s motion for judgment of acquittal because

substantial evidence supports his knowing possession of the visual depictions of

child pornography.

      AFFIRMED.
