United States v. Promise Mebrtatu , 543 F. App'x 137 ( 2013 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 12-4300
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UNITED STATES OF AMERICA
v.
PROMISE MEBRTATU,
Appellant
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On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(E.D. Pa. No. 2-11-cr-00204-02)
District Judge: Honorable Gene E.K. Pratter
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Submitted Pursuant to Third Circuit LAR 34.1(a)
October 7, 2013
Before: FUENTES, GREENBERG, and BARRY, Circuit Judges.
(Opinion Filed: October 30, 2013)
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OPINION OF THE COURT
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FUENTES, Circuit Judge:
Promise Mebrtatu appeals from the District Court’s final judgment of conviction
and sentence and requests a new trial. Mebrtatu raises two issues on appeal: (1) whether
the District Court properly denied Mebrtatu’s motion to suppress physical evidence
obtained during a vehicle search, and (2) whether the District Court properly denied
Mebrtatu’s motion in limine to exclude text messages retrieved from a cellular phone
found on her person. For the reasons that follow, we affirm the District Court’s denial of
Mebrtatu’s motion to suppress and motion in limine.
I. Factual and Procedural Background
On March 31, 2011, a grand jury in the Eastern District of Pennsylvania returned
an indictment charging Promise Mebrtatu and three other individuals with participating in
a conspiracy to commit bank fraud and aggravated identity theft and with substantive acts
of bank fraud and aggravated identity theft. Before trial, Mebrtatu, along with co-
defendants Markcus Goode and Milan Douglas, filed a motion to suppress physical
evidence recovered during Vermont state troopers’ search of the rental car in which they
were traveling.
Co-defendant Goode’s niece, Charmaine Mitchell, rented the car in question from
Dollar Rental Car, and Goode was driving the car when it was stopped and searched.
Mebrtatu, along with Milan Douglas and Jessica Randolph, were passengers in the car at
the time. Neither Goode’s name nor any of the passengers’ names were listed on the
rental agreement. Mitchell was the only authorized driver of the rental car.
On December 1, 2011, the District Court held a hearing on the motion to suppress.
During the suppression hearing, Vermont State Trooper Christopher Lora, the primary
law enforcement officer involved in the vehicle stop, testified about the stop and the
ensuing events. The District Court subsequently denied the motion to suppress in a
written opinion. In pertinent part, the Court held that “Defendants all lack standing to
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challenge the search of this rental car because none of them was listed on the rental
agreement as an authorized driver.” App. 10. Additionally, the District Court held that
the car search followed Goode’s voluntarily and freely given consent and that there was
probable cause to conduct the search.
Mebrtatu and her co-defendants subsequently filed a motion in limine to exclude
several exhibits, including the LM GM730 cellular phone recovered from Mebrtatu
during her arrest and the text messages found on that phone. During trial, the District
Court concluded that the government met its burden of authentication. Accordingly, the
District Court denied Mebrtatu’s motion in limine to exclude the seized cellular phone
and the text messages associated with the three phone numbers found on the device.
After hearing the evidence at trial, a jury convicted Mebrtatu of some, but not all,
of the 38 counts in the indictment. On November 5, 2012, the District Court sentenced
Mebrtatu to a total of 78 months imprisonment. Mebrtatu timely filed this notice of
appeal.1
II. Analysis
A. Motion to Suppress
On appeal, Mebrtatu argues that the District Court erred in denying her motion to
suppress evidence seized during the rental car search. Mebrtatu asserts that the traffic
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The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction
pursuant to 28 U.S.C. § 1291. “This Court reviews the District Court’s denial of a
motion to suppress for clear error as to the underlying factual findings and exercises
plenary review of the District Court’s application of the law to those facts.” United
States v. Perez, 280 F.3d 318, 336 (3d Cir. 2002). A District Court’s ruling on the
authentication of evidence is reviewed for abuse of discretion. See United States v.
Reilly, 33 F.3d 1396, 1403 (3d Cir. 1994).
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stop that resulted in this vehicle search was unduly prolonged and constituted an unlawful
detention. We disagree with Mebrtatu’s contention. A traffic stop “ordinarily continues,
and remains reasonable, for the duration of the stop.” Arizona v. Johnson, 555 U.S. 323,
333 (2009). Moreover, an officer is permitted to ask questions even if they are unrelated
to the purposes of the stop. See id. (“An officer’s inquiries into matters unrelated to the
justification for the traffic stop, this Court has made plain, do not convert the encounter
into something other than a lawful seizure, so long as those inquiries do not measurably
extend the duration of the stop.”). Because Mebrtatu has not presented evidence
demonstrating that Trooper Lora unduly prolonged the stop, we hold that the stop did not
constitute an unlawful detention.
Additionally, the District Court correctly concluded that Mebrtatu and her co-
defendants lack standing to challenge the search of the rental car because they were not
listed on the rental agreement as authorized drivers. “Standing to challenge a search
requires that the individual challenging the search have a reasonable expectation of
privacy in the property searched.” United States v. Baker, 221 F.3d 438, 441 (3d Cir.
2000) (citing Rakas v. Illinois, 439 U.S. 128, 143 (1978)). As we held in United States v.
Kennedy, “the driver of a rental car who has been lent the car by the renter, but who is not
listed on the rental agreement as an authorized driver, lacks a legitimate expectation of
privacy in the car unless there exist extraordinary circumstances suggesting an
expectation of privacy.” 638 F.3d 159, 165 (3d Cir. 2011).
Mebrtatu argues that this case is distinguishable from Kennedy. In Kennedy, we
concluded that the defendant, who was not listed on the rental agreement, lacked standing
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to challenge the search of a vehicle rented by his girlfriend. Id. at 168. According to
Mebrtatu, the instant case presents extraordinary circumstances giving rise to a legitimate
expectation of privacy because Goode specifically asked Mitchell to rent the car on his
behalf and for his use. We disagree. This case raises the identical issue presented in
Kennedy, namely “whether someone who has been given permission to drive a vehicle by
its renter, without the knowledge of its owner and in contravention of the rental
agreement, nevertheless has standing to challenge a search of that vehicle.” Id. at 165.
As in Kennedy, “[a]lthough [the driver] had the permission of the renter to operate the
vehicle, he did not have the permission of the owner. . . . [A]ny expectation of privacy he
subjectively held in the vehicle was therefore objectively unreasonable.” Id. at 168
(emphasis added). Because Dollar Rental Car only authorized Mitchell to drive the car,
none of the defendants, including Mebrtatu, had standing to challenge the search of the
car. Accordingly, we affirm the District Court’s denial of the motion to suppress.
B. Motion In Limine
On appeal, Mebrtatu argues that the District Court erred in denying her motion in
limine to exclude text messages found on the seized cellular phone. In particular,
Mebrtatu asserts that the government did not have sufficient evidence to authenticate the
messages and attribute them to her.
We affirm the District Court’s denial of Mebrtatu’s motion in limine. Rule 901 of
the Federal Rules of Evidence governs the requirements for authenticating evidence.
Pursuant to Rule 901, “[t]o satisfy the requirement of authenticating or identifying an
item of evidence, the proponent must produce evidence sufficient to support a finding
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that the item is what the proponent claims it is.” Fed. R. Evid. 901(a). Rule 901(b)
provides a non-exhaustive list of examples of appropriate methods for authenticating
evidence. These include: “[t]estimony that an item is what it is claimed to be” and
“appearance, contents, substance, internal patterns, or other distinctive characteristics of
the item, taken together with all the circumstances.” Fed. R. Evid. 901(b)(1), (4).
The government’s “burden of proof for authentication is slight. All that is
required is a foundation from which the fact-finder could legitimately infer that the
evidence is what the proponent claims it to be.” United States v. Reilly, 33 F.3d at 1425
(citation and internal quotation marks omitted). As we previously explained:
[T]here need be only a prima facie showing, to the court, of authenticity,
not a full argument on admissibility. Once a prima facie case is made, the
evidence goes to the jury and it is the jury who will ultimately determine
the authenticity of the evidence, not the court. The only requirement is that
there has been substantial evidence from which they could infer that the
document was authentic.
Id. at 1404 (quoting United States v. McGlory, 968 F.2d 309, 328-29 (3d Cir. 1992)).
The government has presented substantial evidence from which a jury could infer
that the text messages in question were authentic and attributable to Mebrtatu. First, as
Trooper Lora testified at trial, the device containing these text messages was found on
Mebrtatu’s person. C.f. United States v. Turner, 718 F.3d 226, 233 (3d Cir. 2013)
(holding that foreign bank documents found inside a person’s home were properly
authenticated); United States v. McGlory, 968 F.2d at 329 (holding that notes found in the
trash outside the defendant’s residence were properly authenticated).
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Second, the content of the text messages indicates that Mebrtatu was the user of
the seized phone and hence the sender and receiver of the messages found on that phone.
C.f. Turner, 718 F.3d at 233 (holding that the documents’ contents supported a finding of
authenticity, since these documents were addressed to the defendant’s co-conspirator and
several were responsive to the co-conspirator’s faxes). Numerous text messages received
by each of the three numbers associated with the phone were sent to “Promise.”
Moreover, in one of the text messages sent from that phone, the sender identified herself
as “Promise.” Another indicator that Mebrtatu used the phone in question is that several
text messages sent and received by each of the three phone numbers referred to
“markcus,” and text messages stated “I love you Markcus.” App. 28, 43. The content of
these messages, taken together with the fact that Markcus Goode identified Promise as
his girlfriend of eight months, provides evidence of their authenticity. Finally, the
government correctly notes that the phone contained other text messages whose content,
when considered in conjunction with Jessica Randolph’s testimony, supports a finding of
authenticity.
In sum, the government produced sufficient evidence to satisfy its slight burden of
proof for authentication. Therefore, we conclude that the District Court did not abuse its
discretion in ruling that the text messages were properly authenticated.
III.
For the foregoing reasons, we affirm the District Court’s denial of Mebrtatu’s
motion to suppress and motion in limine.
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