2013 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit

10-30-2013 

# U S A v . P r omi se M e br t a tu

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w . v i l l a no v a . e du/thir dc ir c uit_2013/24NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________ No. 12

- 4300

_____________ UNITED STATES OF AMERICA

v. PROMISE MEBRTATU ,

Appellant

____________ 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

____________ Submitted Pursuant to Third Circuit LAR 34.1(a)

October 7 , 2013 Before: FUENTES, GREENBERG , and BARRY , Circuit Judges

.

( Opinion Filed: October 30, 2013 )

____________ OPINION OF THE COURT

____________ FUENTES, Circuit Judge : Promise Mebrtatu appeals from the D istrict C ourt’s final judgment of conviction
and sentence and requests a new trial

. Mebrtatu rais es two issues on appeal: ( 1) whether the D istrict C ourt properly denied Mebrtatu’s motion to suppress physical evidence2

obtained during a vehicle search , and ( 2) whether the D istrict C ourt properly denied Mebrtatu’s motion in limine to exclude text message s retrieved from a cellular phone found on her person. For the reasons that follow, we affirm the D istrict C ourt’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 E astern 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 identi ty theft

. Before trial , Mebrtatu , along with co defendants Mar kc us 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 n iece , 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. N either Goode’s name nor any of the passengers’ names were listed on the
renta l 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, Vermon t 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, th e Court held that “ D efendants all lack standing to3

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 Mebrta tu 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 cell ular 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 Cour t 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 D istrict C ourt erred in denying her motion to suppress evidence seized durin g the rental car search. Mebrtatu asserts that the traffic

1 The D istrict C ourt had juris diction 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 exerci ses 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 D istrict C ourt’s ruling on the authentication of evidence is reviewed for abuse of discretion. See United Stat es v. Reilly 

### , 33 F.3d 1396, 1403 (3d Cir. 1994).4

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 re asonable, 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 D istrict C o urt correctly concluded that Mebrtatu and her co

defendants lack standing to challenge the s earch 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
p rivacy in the property searched.” Un ited 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 a greement as an authorized driver, lacks a legitimate expectation of privacy in the car unless there exist extraordinary circumstances suggesting an

e xpectation of privacy.” 638 F. 3d 159, 165 (3d Cir. 2011 )

. Mebr t atu argues that this case is distinguish able from Kennedy . In Kennedy , we concluded that the defendant, who was not listed on the rental agreement, lacked standing5

to challenge the search of a vehicle rented by his girlfriend. Id. at 168. According to Mebrtatu, the instant case present s extra ordinary 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 som eone 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 un reasonable.” 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 C ourt’s denial of the motion to suppress.
B. Motion I n Limine On appeal, Mebrtatu argues that the District C ourt erred in denying her motion in
limin e to exclude text messages found on the seized cellular phone. In particular, Mebrtatu asserts that the government did not have sufficient evidence to authent icate the messages and attribute them to her. We affirm the D istrict C ourt’s denial of Mebrtatu’s motion in limine. Rule 901 of
the Federal Rule s of Evidence governs the requirements for authenticating evidence. Pursuant to Rule 901, “[t]o satisfy the r equirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding6

that the item is what the proponent claims it is. ” Fed. R. Evid. 901(a). Rule 901(b) provides a non

- exhaustive list of ex amples 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 cla ims 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 p rima 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 d ocument 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 attributa ble to Mebrtatu

. First, as Trooper Lora testified at trial , the device containing these text messages w as 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 in side a perso n’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).7

Second, the content of the text messages indicate s 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 defenda nt’s co

- conspirator and several we re responsive to the co

- conspirator’s faxes). N umerous 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 th at phone, the sender identified herself as “Promise.” A nother indicator that Mebrtatu used the phone in question is that s everal text messages sent and received by each of the three phone numbers referred to “markcus ,” and t ext messages stated “I love you Markcus

. ” A pp. 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 oth er text messages whose content, when considered in conjunction with Jessica Randolph’s testimony, supports a finding of authenticity. In sum, t he government produced sufficient evidence to satisfy its slight burden of proof for authentication . Therefore, we conclude that the District C ourt did not abuse its discretion in ruling that the text messages were properly authenticated.

III. For the foregoing reasons, we affirm the D istrict C ourt’s denial o f Mebrtatu’s motion to suppres s and motion in limine

.