The court finds that Mr. Rath consented to the search of his person. The exchange with Det. Jacob took approximately one minute, did not include any threats or promises, did not extend the stop, and took place during daylight hours in a public area with people walking past.

 

 State v. Rath

2023 – Ohio – 2118

Eleventh District Appellate Court

Lake County, Ohio

June 26, 2023

 

Rath’s Path to Probable Cause

Detective Ryan Butler and Detective Matthew Jacob, both of the Mentor Police Department, testified at the hearing. Det. Jacob testified that on June 28, 2022 he received a tip that Mr. Michaels Rath was staying at the Woodspring Suites Hotel in Mentor with a female who appeared to be intoxicated. Det. Butler testified that he followed Mr. Rath and his companion, later identified as Ms. Kelcey Music as Mr. Rath made several short duration stops, including at the home of Devon Brooks, who has a criminal history for drug trafficking. Mr. Rath also engaged in evasive driving tactics. Det. Jacob pulled over Mr. Rath for a marked lanes violation and questioned him outside of his vehicle. Mr. Rath tried to buy time before answering each question and appeared nervous; he was sweating and breathing heavily.

Was “Go Ahead and Search Me Man” Mr. Rath’s Path to Consent to Search?

Mr. Rath consented to a pat down, but when Det. Jacob asked to search him Mr. Rath said he did not think it was necessary for a routine traffic stop. Det. Jacob explained that it was more than a routine stop, and that if Mr. Rath had nothing to hide then the sooner he searched Mr. Rath the sooner Mr. Rath could leave; Mr. Rath responded “go ahead and search me man.” The entire exchange lasted approximately one minute, and was well within the average of ten to fifteen minutes that Det. Jacob testified would be needed for a marked lanes violation stop. No threats or promises were made to Mr. Rath, and while Mr. Rath questioned the need for a search he never said “don’t search me.” Mr. Rath had four white prescription pills in his wallet not in their original packaging, and a large wad of cash in both his wallet and his shorts pocket. As a result Det. Jacob detained him by handcuffing him and putting him in the back of his patrol car.

Ms. Music’s Meth

While Det. Jacob was speaking to Mr. Rath, Det. Butler questioned Ms. Music, who admitted that she had methamphetamine in her purse and was arrested. Mentor Police then searched Mr. Rath’s vehicle, including a backpack that had been within Ms. Music’s reach while she was in the passenger seat, and found narcotics inside the backpack. Later that day Det. Butler obtained a search warrant for Mr. Rath’s hotel room, where he found additional narcotics.

Indicted

On August 15, 2022, the Lake County Grand Jury returned an eight-count Indictment against Rath for Aggravated Trafficking in Drugs, Aggravated Possession of Drugs (two counts), Trafficking in Cocaine, Possession of Cocaine, Trafficking in Heroin, Possession of Heroin, and Possessing Criminal Tools.

Eleventh District Court Quickly Decides that Mr. Rath Consented to the Search of His Person

The court finds that Mr. Rath consented to the search of his person. The exchange with Det. Jacob took approximately one minute, did not include any threats or promises, did not extend the stop, and took place during daylight hours in a public area with people walking past. There were no indications (and Mr. Rath does not argue) that Mr. Rath did not understand Det. Jacob’s request. Mr. Rath questioned the need to be searched, but never stated “don’t search me.” And although there were multiple officers present, those officers did not threaten Mr. Rath or have their guns drawn.

Mr. Rath’s Behavior is Textbook ‘Totality of the Circumstances’

Accordingly, based on the totality of the circumstances, Mr. Rath’s consent was freely and voluntarily given. Mr. Rath’s only challenge to the narcotics found in his vehicle and his hotel room is that they are fruit of the poisonous tree because he did not voluntarily consent to the search of his person. Even if Mr. Rath had challenged the search of his vehicle, or opening the backpack during the search, the motion would be denied. Based on the totality of the circumstances – including that Mr. Rath was staying at a Hotel that was known for drug trafficking, he made several short-duration stops, he made evasive driving measures, and he stopped at a known drug trafficker’s house for five to ten minutes; and Music admitted to having methamphetamine in her purse and had access to the backpack in the vehicle – the court finds that the officers had probable cause to search the vehicle and the backpack.

Plea to Trafficking in Drugs

On November 8, 2022, Rath entered a plea of “No Contest” to the count of Trafficking in Drugs and “Guilty” to accompanying Contraband/Instrumentalities Forfeiture and Currency Forfeiture Specifications. The remaining counts of the Indictment were dismissed at sentencing.

Sentence – Five to Seven and a Half Years

On December 20, 2022, the trial court issued a Judgment Entry of Sentence, ordering Rath to serve a prison term of a minimum of five years to a maximum of seven and one-half years for Aggravated Trafficking.

Feeble Appeal Filed

On January 10, 2023, Rath filed his Notice of Appeal. On appeal, he raises the following assignments of error:

Mr. Rath argues that the facts of the present case demonstrate that his consent was not voluntary: “When Mr. Rath agreed to the search of his person, he was surrounded by numerous officers. He had been informed that he was not just stopped for a traffic violation, but was actually the subject of a narcotics investigation. His initial refusal to consent to a search did not stop detectives from repeatedly asking for permission to search. Officers also indicated to him that he would need to agree to a search in order to end the interaction with law enforcement.” We disagree.

Established Case Law on Consent to Search

As noted above, consent to search is valid if it is voluntarily given under the totality of the circumstances. Although seven officers were present at the scene, only a couple were actively engaged with Mr. Rath. Although reluctant to consent to the search, the interaction between Mr. Rath and the police was cooperative rather than confrontational, occurred in a public space, and was of brief duration. The fact that Mr. Rath was under investigatory detention when he gave his consent does not ipso facto render the consent involuntary. “The fact of custody alone has never been enough in itself to demonstrate a coerced confession or consent to search.” State v. Riedel, 2017-Ohio-8865, quoting United States v. Watson, 423 U.S. 411, 424, (1976).

Facts Do Not Equate to Coercion

Here, Detective Jacob presented Mr. Rath with an accurate description of the situation so as to render his consent informed rather than coerced. Mr. Rath was the subject of a narcotics investigation and had been observed engaging in activity that caused the police to have reasonable (and justified) suspicions that he was trafficking. Detective Jacob’s statements that these suspicions would have to be eased before Rath could leave simply reflected the actual circumstances of the situation. “[I]f the officer’s statement simply advises the suspect of his [or her] precise legal situation, such a ‘threat’ is not coercion.” State v. Williams, 2020-Ohio-3903.

**There was a second appeal based on infective counsel, however the Eleventh District Court dismissed that claim too.

Holding

For the foregoing reasons, Mr. Rath’s conviction and sentence for Aggravated Trafficking in Drugs is affirmed. Costs to be taxed against the appellant.

Information for this article was obtained from State v. Rath, 2023 – Ohio – 2118.

State v. Rath, 2023 – Ohio – 2118 was issued by the Eleventh District Appellate Court on June 26, 2023 and is binding in the following Ohio Counties: Ashtabula, Geauga, Lake, Portage and Trumbull.

Lessons Learned:

  1. Rath’s Path to Probable Cause – Mr. Michael Rath provided the Mentor Police detectives with a path directly from the Woodspring Hotel directly to establishing probable cause. The probable cause was established because Detective Ryan Butler and Detective Matthew Jacob professionally observed and documented the trail of clues left by Mr. Rath.  The detectives’ documentation is a textbook example of how to conduct an investigation.
  2. Consent – For a person to waive their Fourth Amendment right to unreasonable searches, the person must consent. For a person to consent to a search of their person, car or home, the person must do so 1) Knowingly, 2) Voluntarily and 3) Intelligently.  In this case Mr. Rath feebly argued that he could not consent while under investigative detention.  This case, like all other similar cases are going to be evaluated on the facts of the case.  As the court explained “Mr. Rath responded “go ahead and search me man.” The entire exchange lasted approximately one minute, and was well within the average of ten to fifteen minutes that Det. Jacob testified would be needed for a marked lanes violation stop. No threats or promises were made to Mr. Rath, and while Mr. Rath questioned the need for a search he never said “don’t search me.””.  Consequently, Mr. Rath’s consent was consensual.  In other cases, similar facts may not be consensual as there are many factors that are to be considered which include, but are not limited to: the tone and inflection of the officer, where the officer was standing in relation to the position of the suspect, how many officers are at scene, the environment or location of the request and many others.
  3. Right to Frisk is Virtually Automatic – In 1993 the Supreme Court of Ohio issued State v. Evans, 67 Ohio St.3d 405 (1993) and held “The right to frisk is virtually automatic when individuals are suspected of committing a crime, like drug trafficking for which they are likely to be armed.”. Once Mr. Rath was stopped the detectives had already received a tip [The court does not identify whether it is a known or unknown tipster.  For purposes of my analysis, I will assume the tipster is unknown.], made several short duration stops to include one at Mr. Devon Brooks’ home a known drug trafficker and committed evasive driving actions.  All of these combined would lead a reasonable officer to believe that Mr. Rath was involved in drug trafficking leading to an Evans pat down.  For more on State v. Evans, 67 Ohio St.3d 405 (1993) see The Right to Frisk is Virtually Automatic … Except When it Isn’t.
  4. True Rule – Once Ms. Music’s meth was discovered that should have triggered a Carroll v. United States, 267 U.S. 132 (1925) probable cause search of the vehicle. In that case the U.S. Supreme created the Motor Vehicle Exception to the Fourth Amendment when it held “On reason and authority, the true rule is that, if the search and seizure without a warrant are made upon probable cause, that an automobile or other vehicle contains [contraband] … the search and seizure are valid.”.
  5. Pre-Sent Arms! Both Detective Ryan Butler and Detective Matthew Jacob should be highly commended in the investigation, arrest and conviction of Mr. Rath!  Well done detectives!

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Robert H. Meader Esq.