“On or about March 31, 2011,” Promise Mebrtatu “was charged
in a 38-count Indictment. . . . with one count of conspiracy in violation
of 18 U.S. Code § 371, six counts of bank fraud and aiding and abetting
in violation of 18 U.S. Code §§ 1344 and 2, and 31 counts of
aggravated identity theft and aiding and abetting in violation of 18 U.S. Code §§ 1028A and 2.” Opening Brief
for Appellant, U.S. v. Mebrtatu, 2013
WL 1305481 (U.S. Court of Appeals for the 3d Circuit 2013).
After the U.S. District Court judge who had
the case denied her motion to suppress (which we will come back to), Promise Mebrtatu
went to trial. Opening Brief for
Appellant, U.S. v. Mebrtatu, supra.
The judge dismissed counts 7, 26 and 27; the jury convicted
Mebrtatu “ of counts one, two through six, eight through 20, 24-25, 28-34, and
36-38” and found her not guilty “of counts 21-23, and 35.” Opening Brief for
Appellant, U.S. v. Mebrtatu, supra. After she was convicted, the District Court judge “sentenced Mebrtatu to a total of 78 months imprisonment.” U.S. v. Goode, 2013 WL 5814134 (U.S.
Court of Appeals 2013).
Mebrtatu appealed, claiming the District Court judge erred
(i) in denying her “motion to suppress physical evidence obtained during a
vehicle search” and (ii) in denying her “motion
in limine to exclude text messages retrieved from a cellular phone found on her
person.” U.S. v. Mebrtatu, 2013 WL 5814139 (U.S. Court of Appeals for the 3d
Circuit 2013). In a prior ruling in this
case, the Court of Appeals explained how the case arose:
On March 31, 2011, a grand jury in the
Eastern District of Pennsylvania returned an indictment charging Markcus Goode
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, Goode, along with codefendants Promise
Mebrtatu and Milan Douglas, filed a motion to suppress physical evidence seized
during Vermont state troopers' search of the rental car in which they were
traveling.
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. Promise Mebrtatu, 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.
During the car search, the officers
recovered several items related to bank fraud and identity theft, including
checkbooks in different names and an envelope containing photocopies of
processed checks. The photocopied checks were wrapped around Pennsylvania
driver's licenses, and, while the names on the Pennsylvania licenses matched
those on the photocopied checks, the license photos were all of Jessica
Randolph.
Vermont law enforcement also found
containers of Krazy Glue, a box of disposable medical gloves, and a bottle of
isopropyl alcohol, materials that can be used to produce fraudulent
identification cards.
U.S. v. Goode, supra. The news story you can find here provides a
little more information about the facts in the case.
The District Court judge held a hearing on Mebrtatu’s motion
to suppress and during that hearing “Vermont State Trooper Christopher Lora,
the primary law enforcement officer involved in the vehicle stop, testified
about the stop and the ensuing events”, as outlined above. U.S. v. Goode, supra.
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 challenge the search of this rental car
because none of them was listed on the rental agreement as an authorized driver.’
. . . 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.
U.S. v. Goode, supra.
On appeal, Mebrtatu argued that the District Court judge
erred in denying her motion because “the traffic stop that resulted in this
vehicle search was unduly prolonged and constituted an unlawful detention.” U.S. v. Goode, supra. Here,
Mebrtatu is arguing that while the traffic stop may have been “reasonable” at
the beginning, it lasted too long and expanded to cover non-traffic issues and
therefore constituted a “seizure” that violated the 4th
Amendment. As Wikipedia explains,
a person is seized within the meaning
of the 4th Amendment only when, by means of physical force or show
of authority, his freedom of movement is restrained and, in the circumstances
surrounding the incident, a reasonable person would believe that he was not
free to leave.
And as this site explains, to comport with the 4th
Amendment, a traffic stop must be “reasonable” both in scope and duration,
which means the officer can legitimately stop the vehicle and take whatever
efforts are necessary to carry out the purpose of the stop, e.g., issue a
ticket, etc. Here, the Court of Appeals
rejected Mebrtatu’s argument that this encounter exceeded the legitimate scope
of a traffic stop:
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 (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.
U.S. v. Goode, supra.
The Court of Appeals also agreed with the District Court
judge 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.’ U.S. v. Baker, 221 F.3d 433 (U.S.
Court of Appeals for the 3d Circuit 2000) (citing Rakas v.Illinois, 439 U.S. 128 (1978)).
-->
As we held in U.S. 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.’ U.S. v. Kennedy, 638 F.3d 159 (U.S. Court of Appeals for the 3d
Circuit 2011).
Mebrtatu argues that this case is
distinguishable from Kennedy. In In Kennedy, we concluded
that the defendant, who was not listed on the rental agreement, lacked standing
to challenge the search of a vehicle rented by his girlfriend . . . 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.’ U.S.
v. Kennedy, supra.
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.’ U.S. v. Kennedy, supra. (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.
U.S. v. Goode, supra.
The Court of Appeals then took up Mebrtatu’s argument 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.
U.S. v. Goode, supra.
As Wikipedia explains, a motion in limine is a motion filed with a
judge in a civil or criminal case that asks “that the judge rule certain
testimony regarding evidence or information may be included or excluded.” It is basically a way of asking the judge to
rule on the admissibility of certain evidence prior to trial or at trial but
outside the presence of the jury.
And as I have explained in prior posts, to be admissible at
trial, evidence must be “authenticated”, i.e., the party offering the evidence
must show that it is what it is claimed to be.
In federal cases, the authentication of evidence is governed by Rule 901(a) of the Federal Rules of Evidence, which says the “requirement of
authentication . . . as a condition precedent to admissibility is satisfied by
evidence sufficient to support a finding that the matter in question is what
its proponent claims” it to be. Rule 901(b) gives some examples of how evidence
can be authenticated: testimony by someone who can identify it; an expert’s
comparing it with “specimens which have been authenticated:’ distinctive
characteristics; public records; or any other method prescribed by law.
The Court of Appeals rejected Mebrtatu’s argument that the
government’s evidence at trial did not sufficiently authenticate the text
messages found on the cell phone. U.S. v.
Goode, supra. It noted that
the methods of authenticating evidence mentioned in Rule 901(b) 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.” U.S. v. Goode, supra.
The Court of Appeals also explained that the prosecution’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.’ U.S.
v. Reilly, 33 F.3d 1396 (U.S. Court of Appeals for the 3d Circuit
1994). 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.’
U.S. v. Reilly, supra (quoting U.S. v. McGlory, 968 F.2d 309 (U.S. Court of Appeals for the 3d Circuit 1992)).
U.S. v. Goode, supra.
The court then found that at Mebrtatu’s trial the
prosecution 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. . . .
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. . . .
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.’ . . . 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.
U.S. v. Goode, supra.
For all these reasons, the Court of Appeals affirmed the
District Court judge’s denial of Mebrtatu’s motion to suppress and motion in
limine. U.S. v. Goode, supra.
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