State v. Iverson

NOT DESIGNATED FOR PUBLICATION No. 127,642 IN THE COURT OF APPEALS OF THE STATE OF KANSAS STATE OF KANSAS, Appellee, v. TRAVIS DEAN IVERSON, Appellant. MEMORANDUM OPINION Appeal from Lyon District Court; LAURA MISER, judge. Submitted without oral argument. Opinion filed October 30, 2026. Affirmed. Jennifer C. Roth, of Kansas Appellate Defender Office, for appellant. Carissa Brinker, senior assistant county attorney, Amy L. Aranda, county attorney, and Kris W. Kobach, attorney general, for appellee. Before MALONE, P.J., ATCHESON, J., and MICHAEL B. BUSER, retired Court of Appeals Judge, assigned. PER CURIAM: A jury in Lyon County District Court convicted Defendant Travis Dean Iverson of 1 count of rape and 12 counts of sexual exploitation of a child based on images law enforcement investigators extracted from his cell phone and computer. On appeal, Iverson principally challenges the search for and seizure of those images as a violation of his constitutional rights. He also suggests the materials were inadmissible hearsay and asserts the district court erroneously entered judgments of conviction on 1 alternative charges submitted to the jury. We find no basis for reversing Iverson's convictions and the resulting sentences. Because this appeal focuses on how law enforcement investigators obtained the child pornography, we outline those circumstances largely as they were developed in the district court hearing on Iverson's motion to suppress those images. The district court denied the motion, and the images were admitted as the cornerstone of the State's case at trial. We need not describe the materials in detail. They depict sexual exploitation of children, felony violations of various subsections of K.S.A. 21-5510(a). The rape charge rests on a video showing Iverson and his housemate sexually abusing the housemate's infant niece in a way violating K.S.A. 21-5503(a)(3). Iverson does not challenge the sufficiency of the evidence submitted to the jury supporting the convictions. Nor does he dispute the punishment the district court imposed on this combination of off-grid and on- grid convictions. Suppression Issues In 2022, Iverson had two Google accounts and uploaded child pornography to each of them. At the time, Google made automated reviews of uploaded materials and compiled a repository or directory of hash values for suspected child pornography. A hash value is a unique alphanumeric identification of an electronically transmitted image that has been described as the equivalent of a fingerprint. That is, no two images will have the same hash value, and multiple automated reviews of the same image will generate the same hash value. See United States v. Brillhart, 181 F.4th 1181, 1185, 1193- 94 (11th Cir. 2026) (describing hash values).[*] [*] We describe the record evidence about the process Google used in 2022. We neither infer nor mean to suggest the process remains the same today. We don't know, and any changes would be irrelevant to this appeal. 2  When an uploaded image generated a hash value matching one in the repository, a Google employee might visually examine the newly uploaded image and any related images to determine if they depicted child pornography. But that did not always happen. Here, an employee did visually inspect four images—three associated with one of Iverson's accounts and one associated with his other account. Under 18 U.S.C. § 2258A, service providers, such as Google, are required to report apparent instances of possession of child pornography to the CyberTipline maintained by the National Center for Missing and Exploited Children, a congressionally mandated depository of and clearing house for information on potentially abused children, largely funded through the federal government. A report to the Center typically includes identification information on the accounts and the likely illicit images. The Center reviews the reports and forwards them to designated law enforcement agencies in the geographic area associated with the reported account. For Kansas, the Center sends the reports to the Kansas Internet Crimes Against Children Task Force, an interagency law enforcement group. After the Google employee confirmed the four images as child pornography, the company sent a report on Iverson's accounts with the uploaded images to the Center. The Center forwarded those materials to the Task Force where they were given to Sedgwick County Sheriff's Detective LaShelle O'Neal to investigate. O'Neal visually examined the same four images the Google employee looked at. Based on that examination and the report, O'Neal obtained a search warrant for Google and Cox Communications to obtain identification information on the accounts and the stored images. The execution of the search warrant yielded Iverson's name and address and additional illicit images. O'Neal then contacted Detective Eric Williams of the Lyon County Sheriff's Office because the address for Iverson was in an unincorporated part of Lyon County. Williams obtained a search warrant for the address and for cell phones, computers, and other digital image storage devices that might be found there. After seizing Iverson's cell phone and computer, Det. Williams obtained search warrants for them. Another detective 3 assigned to the Task Force retrieved the video of the infant's sexual abuse from Iverson's cell phone. Based on that investigation, the State charged Iverson in Lyon County District Court. In the second amended complaint that governed the jury trial, many of the counts against Iverson were charged in the alternative. Before trial, Iverson filed a motion to suppress all of the images as the product of an unreasonable search violating his rights protected in the Fourth and Fourteenth Amendments to the United States Constitution. As we indicated, the district court denied the motion. In challenging the district court's denial of his motion to suppress on appeal, Iverson raises two points: (1) Google acted as an agent of the government in compiling and forwarding the report on his accounts to the Center; and (2) Google's terms of service that he ostensibly agreed to did not waive his expectation of privacy from a government search of the materials he uploaded to his own accounts. We find the first point to be unavailing under the private search doctrine and the criteria for determining when a private party becomes a government agent for Fourth Amendment purposes. Given that conclusion, the second point is legally irrelevant because no government search infringed on Iverson's right to privacy, as protected in the Fourth Amendment. As to the first point, the Fourth Amendment prohibits unreasonable governmental searches and seizures and directly applies to federal agents. As incorporated through the Fourteenth Amendment, the Fourth Amendment imposes a like shield against unreasonable searches and seizures by state and local government agents. Mapp v. Ohio, 367 U.S. 643, 654-55, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961). The Fourth Amendment does not apply to the actions of private parties. Skinner v. Railway Labor Executives' Assn, 489 U.S. 602, 614, 109 S. Ct. 1402, 103 L. Ed. 2d 639 (1989); State v. Brittingham, 296 Kan. 597, 601-02, 294 P.3d 263 (2013). So private citizens acting on their own may gather information and potential evidence pertaining to criminal wrongdoing free of those 4 strictures and may then turn their reconnaissance over to law enforcement officers. The government, in turn, may use that material to prosecute apparent wrongdoers precisely because that evidence has come to them through a private source rather than as a product of their own investigatory efforts. United States v. Jacobsen, 466 U.S. 109, 113, 104 S. Ct. 1652, 80 L. Ed. 2d 85 (1984); State v. Welsh, 26 Kan. App. 2d 362, 363, 988 P.2d 261 (1999); State v. Bohannon, 3 Kan. App. 2d 448, 452, 596 P.2d 190 (1979). But in some circumstances, a private party may become an agent of the government and, thus, subject to the limitations on searches and seizures in the Fourth Amendment. Skinner, 489 U.S. at 614; Brittingham, 296 Kan. at 601-02. The traditional test to determine when a private citizen becomes a governmental agent rests on the totality of the circumstances in any given instance. Basically, private citizens turn into agents of the government when they act both with the intention of assisting law enforcement officers and with the knowledge and acquiescence of those officers. Brittingham, 296 Kan. 597, Syl. ¶ 3; Welsh, 26 Kan. App. 2d at 363; Bohannon, 3 Kan. App. 2d at 452-53. The government actors must "affirmatively encourage" or "have some active part in" the private citizens' investigatory endeavor. Welsh, 26 Kan. App. 2d at 363; see United States v. Guard, 152 F.4th 375, 386-87 (2d Cir. 2025) (outlining principles governing when private entity becomes government agent for Fourth Amendment purposes); United States v. Hines, 140 F.4th 105, 111-12 (2d Cir. 2025); United States v. Rosenschein, 136 F.4th 1247, 1254-55 (10th Cir. 2025). As the Second Circuit explained: "'[A] close nexus is generally found when the state exercises coercive power, is entwined in the management or control of the private actor, or provides the private actor with significant encouragement, either overt or covert.'" Guard, 152 F.4th at 389. Under 18 U.S.C. § 2258A, a service provider, such as Google, is required to report apparent child pornography to the Center and faces a substantial fine for failing to do so. But service providers are not required to affirmatively look for child pornography in the 5 first instance. They may do so, but they do not have to. Service providers have, at least for the most part, concluded their business interests favor looking for possible child pornography to protect their users and their public image and reputation. Even a peripheral association with child pornography would be detrimental to the service provider's corporate reputation and community standing. Accordingly, courts considering the issue have consistently found that service providers looking for child pornography among the materials uploaded to their sponsored accounts and then forwarding reports to the Center are not acting as government agents in doing so. Rosenschein, 136 F.4th at 1255; United States v. Sykes, 65 F.4th 867, 876-77 (6th Cir. 2023); United States v. Miller, 982 F.3d 412, 421-26 (6th Cir. 2020); United States v. Ringland, 966 F.3d 731, 736 (8th Cir. 2020); United States v. Cameron, 699 F.3d 621, 637-38 (1st Cir. 2012). Both the Miller and Ringland decisions involved reports from Google to the Center, so they are particularly instructive. The courts pointed out that a reporting mandate divorced from a concomitant search requirement was insufficient to turn Google into a government agent. And Google had outlined business benefits to its review of content for child pornography, further undercutting any purported intent to act as a government agent. Miller, 982 F.3d at 424-25; Ringland, 966 F.3d at 736. We agree with this case authority and fail to see the direct government involvement necessary to make service providers, acting in their own interests, to be state agents if they look out for child pornography and then report any suspected materials to the Center. Here, Google acted as a private entity. Under what's known as the private search doctrine, government agents may replicate a private search without obtaining a warrant and without violating the Fourth Amendment. Jacobsen, 466 U.S. at 115, 119-20; 466 U.S. at 133 (White, J., concurring in part and concurring in judgment); Brillhart, 181 F.4th at 1190; Ringland, 966 F.3d at 736; United States v. Fall, 955 F.3d 363, 370 (4th Cir. 2020). In Jacobsen, the Court recognized that private searches, even unreasonable ones, fall outside the protections of the Fourth Amendment. 466 U.S. at 113. In turn, 6 government agents do not violate the Fourth Amendment if their search is no more extensive or intrusive than the earlier private search. 466 U.S. at 115. So Det. O'Neal properly examined the images in the report forwarded to the Center that the Google employee had already looked at in preparing the report. In turn, she and Det. Williams obtained search warrants for their later searches. Iverson does not independently challenge the sufficiency of those warrants or the searches; he relies on his asserted Fourth Amendment violation occasioned by Google's collection and examination of the images as a government agent. We have rejected that argument. Iverson largely rests his legal position on United States v. Ackerman, 831 F.3d 1292, 1296-98 (10th Cir. 2016), finding the Center to be a government agent, given that its statutory duties including significant law enforcement functions and its heavy reliance on federal funding. See also Guard, 152 F.4th at 387-89 (finding the Center to be governmental entity). But the extension or analogy fails to establish a sound argument that Google and other service providers are themselves government agents. See Guard, 152 F.4th at 389-90; Rosenschein, 136 F.4th at 1256. In the interests of completeness, we mention that federal appellate courts are split on whether government agents violate the Fourth Amendment when they look at the images included in a service provider's report to the Center if the service provider generated the report through an autonomous comparison of hash values alone and without having an employee visually review the uploaded images to confirm their content as child pornography. See Brillhart, 181 F.4th at 1191-92 (outlining circuit split and aligning with Fifth and Sixth Circuits to find no Fourth Amendment violation contrary to Second, Fourth, and Ninth Circuits). We do not confront that issue here and offer no opinion on it. The facts show that a Google employee examined the four images identified as likely child pornography included in the report to the Center. Det. O'Neal later reviewed those images to obtain the initial search warrants, replicating but not exceeding the private search consistent with Jacobsen. 7  Iverson's second point that he had a legitimate expectation of privacy from a governmental search in the materials he transmitted and stored through Google is irrelevant because we have found the search to be unobjectionable under the Fourth Amendment. See Jacobsen, 466 U.S. at 117; Brillhart, 181 F.4th at 1189, 1195; United States v. Maher, 120 F.4th 297, 313-14 (2nd Cir. 2024). Even if Google had breached its user agreement with Iverson, that would not have tainted the later governmental search. We need not wade into whether the terms of Google's user agreement compromised any reasonable expectation of privacy at least from a governmental search. The courts have divided on conditional "may" language of the sort Google used in setting out what the service provider might or might not do with respect to monitoring content. Compare United States v. Blocker, 174 F.4th 587, 590-91 (7th Cir. 2026) (defendant had no reasonable expectation of privacy in Dropbox account), with Maher, 120 F.4th at 307-09 (defendant retained reasonable expectation of privacy in Google account). That division does not bear on the propriety of the governmental search yielding the child pornography the State used to prosecute Iverson. Consistent with the Fourth Amendment, the government agents simply replicated Google's search. Whether Google violated its user agreement as a private entity did not implicate the Fourth Amendment or its constraints on governmental conduct. Trial Issues Iverson next argues that the content of the Google report, including the illicit images, amounted to inadmissible hearsay when the State offered those materials at trial. He then contends that without them, the charges against him were insufficiently supported. But, as Iverson acknowledges, he did not object during the trial on hearsay grounds. He objected on the basis the report and images should have been suppressed for the reasons he asserted in his pretrial motion. The Kansas Supreme Court has strictly enforced the contemporaneous objection rule in K.S.A. 60-404 and has thus declined to consider arguments premised on an evidentiary ground not specifically raised in the 8 objection lodged at trial. State v. Scheetz, 318 Kan. 48, 59, 541 P.3d 79 (2024); State v. Richmond, 289 Kan. 419, Syl. ¶¶ 2, 4, 212 P.3d 165 (2009). We follow that authority and find no preserved error. Iverson alleges the district court made another trial error in allowing the State to admit 7 images of child pornography extracted from his cell phone and computer apart from the 13 retrieved from the Google accounts that formed the bases for the criminal charges. The State filed a pretrial motion to admit the additional images as propensity evidence under K.S.A. 60-455(d). In granting the motion, the district court allowed five images from Iverson's cell phone and two from his laptop to be admitted. Iverson does not dispute that the additional images are of the same general character as the ones supporting the charges. At the conclusion of the case, the district court gave a generic instruction to the jurors that evidence had been admitted showing Iverson committed sexual exploitation of a child on occasions other than those identified in the charges and that evidence should be considered only as bearing on his propensity to "commit sexual misconduct." On appeal, Iverson contends those circumstances created reversible error. We find the argument to be an unwarranted stretch. As a general rule, a defendant's propensity or disposition to break the law is not admissible to prove they have done so on the particular occasion the State has charged. K.S.A. 60-455(a). That's because the inference "once a criminal, always a criminal" is a powerful one and may deflect jurors from substantial weaknesses in the State's evidence. See State v. Hogan, 321 Kan. 27, 40-41, 573 P.3d 207 (2025); Miller, Extending Mercy, 59 U. Cal. Davis L. Rev. 1355, 1363 (February 2026) (probative value of propensity evidence derives from aphorisms such as "'Once a criminal, always a criminal.'"). But the Legislature has crafted an exception when the State seeks to convict a defendant of various sex crimes, including those charged against Iverson. K.S.A. 60-455(d), (g)(1). The State may then introduce propensity evidence to prove guilt, so long as the evidence 9 is relevant to a material issue and its probative value outweighs any undue prejudice to the defendant. State v. Boysaw, 309 Kan. 526, 539, 439 P.3d 909 (2019). Here, Iverson's possession of child pornography is the material issue on the sexual exploitation charges. And his possession of such material on other occasions demonstrates his propensity to engage in that behavior and thus supports the inference he so acted on the occasions the State has charged. That much seems plain. See Boysaw, 309 Kan. at 534-35. We then review the district court's weighing of the probative value of that evidence against its undue prejudice for abuse of judicial discretion. 309 Kan. at 539. A district court exceeds that broad authority if it rules in a way no reasonable judicial officer would under the circumstances, if it ignores controlling facts or relies on unproven factual representations, or if it acts outside the legal framework appropriate to the issue. State v. Rayton, 321 Kan. 677, 686, 583 P.3d 898 (2026); State v. Shields, 315 Kan. 131, 142, 504 P.3d 1061 (2022). Iverson bears the burden of proving an abuse of discretion. Rayton, 321 Kan. at 686. We are hard-pressed to see an abuse of discretion here. The additional seven images have some modest probative value as propensity evidence. And given the similarity of the 7 images to the 13 charged images, we fail to discern undue prejudice to Iverson. The result might be different if the uncharged images were appreciably more graphic or disturbing than the charged ones. But that case is not this case. We have no sound legal basis to step in and reverse the district court's decision. In the district court, the State sought to admit the other images, in part, to refute any argument Iverson might make during trial that an interloper had hacked his Google accounts and uploaded the child pornography used to support the charges. We find that position unpersuasive. First, the State cannot introduce evidence in its case-in-chief strictly to rebut an anticipated defense. See State v. Mader, 261 Kan. 280, 284-85, 931 P.2d 1247 (1997); State v. Vinyard, 32 Kan. App. 2d 39, 45, 78 P.3d 1196 (2003). 10 Second, in that context, the evidence of the other images would not be offered as propensity evidence so much as to refute a claim of lack of intent or a form of accident, i.e., the images were in the accounts through no conduct or fault of Iverson's. Were such a defense offered, then the State could seek to admit the other images as rebuttal evidence. Disposition of Alternative Charges Finally, Iverson contends the district court entered convictions on both the principal charges and the alternatives charges submitted to the jury. Doing so would be improper because it would result in two convictions for one charged criminal act. But the record shows the district court entered convictions on only the principal charges and sentenced Iverson accordingly. The district court discarded the jury verdicts redundantly convicting Iverson of the alternative charges. The journal entry is consistent with that result. In short, the record does not support Iverson's contention about what the district court purportedly did. Affirmed. 11