2013 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

10-30-2013

USA v. Promise Mebrtatu

Precedential or Non-Precedential: Non-Precedential

Docket No. 12-4300

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NOT PRECEDENTIAL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 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 
2

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 codefendants 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 
3

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 

 

1

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 codefendants 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 
5

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 
6

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.