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
- 2 -

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.
- 3 -

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 
- 4 -

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 
- 5 -

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 

1 District courts in this circuit have consistently relied on 

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.
- 6 -

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 
- 7 -

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 
- 8 -

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 
- 9 -

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.
- 10 -

III

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

the judgment of the district court is

Affirmed.