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.
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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 
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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 
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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 
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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.
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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 
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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.