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.

- 2 - 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

- 3 - pleaded guilty to possession with intent to distribute fentanyl in

violation of

(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,

, 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

. 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,

(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,

, at *5. It rejected the defendant's

suggestion that the search was unconstitutional under Maryland v.

King,

(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,

, at *5.

The more relevant question, the court believed, was whether a bail

- 4 - condition requiring searches without suspicion was

constitutionally permissible. See

It proceeded to answer

this question in the affirmative based on our opinion in United

States v. Gates,

(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

.

In defense of his position, the defendant raised an

apparent conflict between Gates and the decision in United States

v. Scott,

(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

. The court below countered

that the bail conditions in Scott were unsupported by

individualized judicial findings. See Gerrish,

,

at *5 (citing Scott,

, 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,

, 4 (D. Me. 2020); United States v. Drane, No. 13-31,

, at *9 (D.N.H. June 30, 2014). Neither set of circumstances was relevant here.

- 5 - ensure a defendant will appear wherever and whenever required.

See

(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."

§ 1026(4).

Thus, the court held that the Ninth Circuit's reasoning in Scott

was inapplicable to the defendant's circumstances here. See

Gerrish,

, 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,

(1st Cir. 2023) (quoting United States v. Moss,

(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

- 6 - 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."

(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,

, at *5.

B

As to the soundness of the bail conditions, the defendant

asserts that — in contrast to his pretrial release status — the

- 7 - 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."

.

Dictum or not, we see no reason to retreat from the

language in Gates. Indeed, reasoning from Samson v. California,

(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

. In so holding, the Court

reasoned "that acceptance of a clear and unambiguous search

condition 'significantly diminishe[s] [one's] reasonable

expectation of privacy.'"

(quoting United States v. Knights,

(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

- 8 - 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,

(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,

, 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.

- 9 - III

We need go no further. For the reasons elucidated above,

the judgment of the district court is

Affirmed.

- 10 -