United States v. Gerrish ( 2024 )

United States Court of Appeals
For the First Circuit
No. 23-1317
UNITED STATES OF AMERICA,
Appellee,
v.
DEREK GERRISH,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Jon D. Levy, U.S. District Judge]
Before
Gelpí, Selya, and Montecalvo,
Circuit Judges.
Robert C. Andrews on brief for appellant.
Darcie N. McElwee, United States Attorney, and Shira Furman,
Assistant United States Attorney, on brief for appellee.
March 15, 2024
SELYA, Circuit Judge. Defendant-appellant Derek Gerrish
moved to suppress evidence that local police officers uncovered
from a search of his vehicle after observing suspicious conduct in
the lot in which it was parked. Concluding that the officers
possessed reasonable suspicion and the defendant's bail conditions
authorized the search, the district court denied his motion. The
defendant subsequently entered a conditional guilty plea, see Fed.
R. Crim. P. 11(a)(2), to a federal drug offense and, on appeal,
continues to challenge the constitutionality of the search. After
careful consideration, we affirm.
I
We briefly rehearse the relevant facts and travel of the
case. We start with the fundamental facts.
A
In June of 2021, the police department in Scarborough,
Maine received a complaint from a staff member at a local hotel,
which alerted them to the possible involvement of hotel guests in
drug trafficking and prostitution. In response to this tip, two
plainclothes police officers staked out the hotel from an unmarked
car in the adjacent parking lot. During their stakeout, the
officers observed two cars enter the hotel's parking lot and
proceed to park a distance from the building's main entrance even
though the lot was only partly populated.
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After tracking several events not relevant here, the
officers noticed the driver of one of the cars (a Toyota Avalon)
flick a syringe as though she was preparing to inject it. They
subsequently approached the two cars, identified themselves as
police officers, and searched the Toyota, which revealed
additional drug paraphernalia. Upon further questioning, the
defendant — who had occupied the other car (a Chrysler 300) —
identified himself and acknowledged that he was on pretrial release
pending resolution of several Maine state criminal charges. He
added that the terms of his release authorized searches without
reasonable suspicion — a fact that the officer confirmed with
dispatch before proceeding. As matters turned out, the defendant
was subject to at least six separate sets of bail conditions
pursuant to Maine law. Five of these strictures provided for
searches of his person, vehicle, or residence at any time and
without suspicion to determine if he had violated other bail
conditions.
The officer who questioned the defendant provided two
justifications for his ensuing search of the Chrysler: the bail
conditions authorized the search, and the defendant had been seen
speaking to someone in the Toyota whose driver they had observed
preparing to inject a syringe. Searching the Chrysler produced a
substance that later was confirmed to be fentanyl, along with an
assortment of other contraband. The defendant subsequently
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pleaded guilty to possession with intent to distribute fentanyl in
violation of 21 U.S.C. § 841(a)(1). The district court sentenced
him to serve a ninety-month term of immurement.
In this venue, the defendant challenges the district
court's denial of his motion to suppress the evidence from the
search of the Chrysler (which he filed prior to tendering his
guilty plea). See United States v. Gerrish, No. 21-132, 2022 WL
1156057, at *1 (D. Me. Apr. 19, 2022).
B
The district court denied the defendant's motion to
suppress the evidence obtained from the search of the Chrysler on
two independent grounds. See id. at *4-5. First, it concluded
that the officers had reasonable suspicion of criminal activity to
detain and search the defendant under the doctrine of Terry v.
Ohio, 392 U.S. 1 (1968). Second, it determined that the
defendant's bail conditions requiring that he submit to searches
without suspicion also justified the officers' conduct. See
Gerrish, 2022 WL 1156057, at *5. It rejected the defendant's
suggestion that the search was unconstitutional under Maryland v.
King, 569 U.S. 435 (2013), because that case stands for the
unrelated proposition that a person arrested for offenses of a
violent nature or burglary could be forced to submit to a buccal
swab for DNA collection. See Gerrish, 2022 WL 1156057, at *5.
The more relevant question, the court believed, was whether a bail
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condition requiring searches without suspicion was
constitutionally permissible. See id. It proceeded to answer
this question in the affirmative based on our opinion in United
States v. Gates, 709 F.3d 58 (1st Cir. 2013). There, we could
discern "no reason why we should not give the plain language of
such a bail condition [authorizing searches without suspicion]
force and effect."1 Id. at 64.
In defense of his position, the defendant raised an
apparent conflict between Gates and the decision in United States
v. Scott, 450 F.3d 863 (9th Cir. 2006). There, the Ninth Circuit
held that probable cause was required to drug test or search the
home of a defendant on pretrial release even though he had
consented to searches without suspicion as a condition of his
release. See id. at 865-66, 874-75. The court below countered
that the bail conditions in Scott were unsupported by
individualized judicial findings. See Gerrish, 2022 WL 1156057,
at *5 (citing Scott, 450 F.3d at 865, 872 & n.12). In contrast,
the Maine Bail Code mandates that judicial officers impose the
least restrictive bail conditions that, inter alia, reasonably
District courts in this circuit have consistently relied on
1
Gates to give effect to this type of bail condition, placing the
burden on the defendant to show that the condition was unreasonable
or that the defendant did not understand it. See, e.g., United
States v. Kissh, 433 F. Supp. 3d 1, 4 (D. Me. 2020); United States
v. Drane, No. 13-31, 2014 WL 2940857, at *9 (D.N.H. June 30, 2014).
Neither set of circumstances was relevant here.
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ensure a defendant will appear wherever and whenever required.
See Me. Rev. Stat. Ann. tit. 15, § 1026(3)(A), (4)(C). And Maine
law requires that the bail decision be predicated on "an interview
with the defendant, information provided by the defendant's
attorney and information provided by the attorney for the State or
an informed law enforcement officer if the attorney for the State
is not available and other reliable information." Id. § 1026(4).
Thus, the court held that the Ninth Circuit's reasoning in Scott
was inapplicable to the defendant's circumstances here. See
Gerrish, 2022 WL 1156057, at *5.
II
The defendant contends that both of the district court's
rationales for denying his motion to suppress were erroneous. When
presented with a challenge to the denial of a motion to suppress,
"we examine the district court's 'factual findings for clear error
and its legal conclusions, including its ultimate constitutional
determinations, de novo.'" United States v. Sheehan, 70 F.4th 36,
43 (1st Cir. 2023) (quoting United States v. Moss, 936 F.3d 52, 58
(1st Cir. 2019)). Because we conclude the bail conditions that
plainly permitted the challenged search were constitutional, we
need not reach the investigatory detention rationale.
A
In a contrary vein, the defendant asserts, "[t]o the
extent that bail searches are a matter of discretion by law
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enforcement in both scope and place[,] they do not fit within the"
Supreme Court's reasoning in King. The King Court held that a
buccal swab of a person under arrest was a reasonable search
because: "[t]he arrestee [was] already in valid police custody
for a serious offense supported by probable cause"; "[t]he DNA
collection [was] not subject to the judgment of officers whose
perspective might be colored by their primary involvement in the
often competitive enterprise of ferreting out crime"; and "such
intrusions are defined narrowly and specifically in the
regulations that authorize them." 569 U.S. at 448 (internal
quotations omitted).
The defendant seems to suggest that the search of him
did not feature these characteristics that led the Court to endorse
the search of the defendant in King. But the defendant's reliance
on King overlooks the fact that he knowingly agreed to — and does
not challenge the reasonableness of — bail conditions that
authorized searches of him without suspicion. As the district
court correctly noted, the analysis in King is inapposite because
the issue here is not necessarily the search itself but, rather,
the bail conditions that authorized the search. See Gerrish, 2022
WL 1156057, at *5.
B
As to the soundness of the bail conditions, the defendant
asserts that — in contrast to his pretrial release status — the
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cases approving the use of bail conditions that authorize searches
without suspicion involve defendants who were serving sentences at
the time of the search. That is, the guilt of a person on parole
already has been determined, and any parole conditions, therefore,
are incident to a lawfully imposed sentence. Whereas — as he
argues here — such constraining bail conditions cannot be imposed,
without further judicial process, on one who has yet to stand trial
or plead guilty. He adds, moreover, that our treatment of the
issue in Gates is dictum because we recognized that "the district
court took a belt-and-suspenders approach," which "supportably
found that the search was independently justified by the extant
bail conditions." 709 F.3d at 64.
Dictum or not, we see no reason to retreat from the
language in Gates. Indeed, reasoning from Samson v. California,
547 U.S. 843 (2006) — to which Gates cites — illustrates the point.
There, the Court held that a person on parole could be searched
without suspicion because he had submitted to these searches as a
condition of his parole. See id. at 852. In so holding, the Court
reasoned "that acceptance of a clear and unambiguous search
condition 'significantly diminishe[s] [one's] reasonable
expectation of privacy.'" Id. (quoting United States v. Knights,
534 U.S. 112, 120 (2001)). Because bail provides a similar
mechanism for a defendant to avoid custody while the criminal legal
process unfolds, one who is on pretrial release likewise faces a
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diminished expectation of privacy. And a state maintains
legitimate interests — such as ensuring the integrity of the
criminal legal process — in supervising persons on pretrial
release.
C
Finally, the defendant highlights the apparent conflict
between our decision in Gates and the Ninth Circuit's decision in
Scott. But as the defendant's own brief admits, we are bound by
the law of the circuit doctrine, which "commands our adherence to
our own prior panel decisions." United States v. Gonzalez, 949
F.3d 30, 39 (1st Cir. 2020). In other words, it is not our role
to overturn binding circuit precedent for the purpose of resolving
what the defendant perceives as a circuit split.
Even so, as the district court identified, the
defendant's circumstances meaningfully differ from those of the
defendant in Scott. See Gerrish, 2022 WL 1156057, at *5. Because
Maine law requires that a judicial officer impose the "least
restrictive" bail conditions and tailor these conditions to the
defendant's individual circumstances, Me. Rev. Stat. Ann. tit 15,
§ 1026(3)(A), (4)(C), the Ninth Circuit's concerns about a
defendant's mandatory waiver of rights as a condition for pretrial
release vanish.
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III
We need go no further. For the reasons elucidated above,
the judgment of the district court is
Affirmed.
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