United States v. Gerrish

UNITED STATES OF AMERICA v. DEREK GERRISH, Defendant.

No. 2:21-cr-00132-JDL-1

United States District Court, D. Maine

April 19, 2022

ORDER ON DEFENDANT DEREK GERRISH'S MOTION TO SUPPRESS

JON D LEVY CHIEF U.S. DISTRICT JUDGE

Defendant Derek Gerrish moves to suppress (ECF No. 49) evidence seized during a search of his vehicle.^[1] Gerrish argues that there was no reasonable suspicion to detain him and that his initial detention was an arrest without probable cause, so the fruits of that detention must be suppressed. Gerrish also argues that his state bail conditions authorizing searches of his person, vehicle, and residence at any time without articulable suspicion or probable cause violate the Fourth Amendment. For the reasons that follow, I deny the motion.

I. FACTUAL FINDINGS

The Scarborough Police Department received a complaint on June 1, 2021 from a hotel's staff member about possible drug trafficking and prostitution at the hotel by some of its guests. Criminal activity, including drug trafficking, has occurred with some frequency at the hotel, and staff had previously provided tips that resulted in successful investigations.

In response to the June 1 tip, two plainclothes officers stationed themselves in a parked, unmarked police car in the parking lot of the business next-door, which gave them an elevated vantage point to observe the hotel's parking lot. Shortly after 2 p.m., the officers saw two cars pull into the hotel's parking lot and back into adjacent spots directly downhill from the officers' location, approximately 10 to 12 feet away. Although the hotel's parking lot was relatively empty, the cars had parked far from the hotel's main entrance. One of the vehicles was a Chrysler 300, and the other was a Toyota Avalon. Each had two occupants. Both cars were registered to owners with Maine addresses not far from the hotel.

The officers saw a woman exit the front passenger door of the Chrysler and walk unsteadily to the main entrance of the hotel. She appeared either intoxicated or sick. The woman then returned from inside the hotel to the Chrysler and lay down so that her torso was inside the car and her legs were outside. One of the officers called the hotel's front desk to ask what the woman had done while inside. He was told that she had rented a room and that it was not ready.

While this was happening, Defendant Gerrish, the driver of the Chrysler, was speaking and gesturing to the male passenger of the Toyota. He also exited his car and then reentered it. Because of the incline, the officers were well positioned to see into both cars through their back windshields. The officers saw the driver of the Toyota holding a syringe and flicking its top as if she was getting ready to inject it.

Upon seeing the syringe, one of the officers radioed to a uniformed officer who was nearby in a police cruiser. As that third officer drove into the hotel parking lot with his lights and siren off, the two plainclothes officers exited their car and approached the Chrysler and the Toyota, one toward the passenger side of the Chrysler where the unsteady woman was lying down and the other toward the driver side of the Toyota where the other woman had the syringe. The two officers identified themselves as police. The third police officer parked his cruiser in front of the Toyota at ¶ 45-degree angle, blocking the Toyota without blocking the Chrysler. The uniformed officer exited his car and approached the passenger of the Toyota, the man who had been speaking with Gerrish.

The woman in the Toyota who had been holding the syringe identified herself to the plainclothes officer who had approached her. Now closer, the officer saw that the syringe contained a reddish-brown liquid resembling heroin or fentanyl. The uniformed officer asked the male passenger of the Toyota what was in the syringe, and the passenger responded that it was “dope.” The officers directed the woman and the man to exit the Toyota, which they did. The woman stated that there were two more loaded syringes in the car, which the officers found during a search, along with other drug paraphernalia. The woman also stated that she was there to meet Gerrish, who she identified by name.

While those events were unfolding at the Toyota, Gerrish and his unsteady passenger identified themselves to the plainclothes officer who had approached the Chrysler. Gerrish asked if he could get out of the car. The officer agreed and met Gerrish by the front of the Chrysler. The officer asked Gerrish whether he was on any bail conditions, and Gerrish stated that he was. The officer asked if the conditions allowed for searches, and Gerrish said yes. In response to a question about what he was on bail for, Gerrish told the officer “everything.” Asked what “everything” referred to, Gerrish said robbery, theft, and assault. The officer radioed to dispatch to confirm that Gerrish was on bail and that his conditions allowed for searches.

At the time of the stop, Gerrish was subject to at least six separate sets of bail conditions, including for charges related to drug trafficking and possession of hypodermic apparatuses. Five contained provisions requiring him to submit to suspicionless searches at any time of his person, vehicle, or residence to determine whether he had violated other bail conditions relating to alcohol, drugs, or weapons. The officer who had been questioning Gerrish told Gerrish that he would search the Chrysler for two reasons: first, because the bail conditions allowed it, and, second, because Gerrish was talking to a person in the Toyota and the officers had observed the driver of that vehicle preparing to inject drugs. During the Chrysler search, Gerrish was standing 5 to 10 feet away with a fourth officer who had just arrived. A fifth officer had also responded to the scene by this time.

The search of the Chrysler revealed a bag containing what the officer immediately recognized as fingers of either heroin or fentanyl.^[2] At that point, the officer placed Gerrish in handcuffs. The officer then found two handguns, several magazines, and additional illegal drugs in the passenger's side floorboard of the Chrysler. Upon the discovery of the guns, an officer handcuffed the woman who had been observed in the other car with the syringe.

II. LEGAL ANALYSIS

A. The Terry Stop

Gerrish first argues that the officers lacked reasonable suspicion that he was engaged in criminal activity and that the officers' approach of him was tantamount to an arrest without probable cause. Thus, he contends that his encounter with the police was unconstitutional from its inception and that the fruits of it should be suppressed. The Government counters that the officers had reasonable suspicion with respect to Gerrish and that his detention was an investigatory stop in accordance with Terry v. Ohio, 392 U.S. 1 (1968).

“Included in the Fourth Amendment's protective ambit are Terry stops-those ‘brief investigatory stops of persons or vehicles that fall short of traditional arrest.'” United States v. Tiru-Plaza, 766 F.3d 111, 115 (1st Cir. 2014) (quoting United States v. Arvizu, 534 U.S. 266, 273 (2002)). Terry stops are reasonable and thus do not violate the Fourth Amendment when officers have a reasonable suspicion that criminal activity may be afoot. Id. “Reasonable suspicion is a less exacting requirement than probable cause, but requires ‘something more than an inchoate and unparticularized suspicion or “hunch.”'” Id. at 116 (quoting Sokolow, 490 U.S. at 7). Whether reasonable suspicion exists is an objective inquiry under the totality of the circumstances. Id.

A Terry stop begins “when a reasonable person would not feel free to refuse to answer police questions and proceed along his way.” United States v. Dapolito, 713 F.3d 141, 147 (1st Cir. 2013).

But “[i]f an officer's actions during the encounter become ‘too intrusive,' the temporary detention may ‘morph into a de facto arrest,' which must be supported by probable cause.” United States v. Gonzalez, 16 F.4th 37, 44 (1st Cir. 2021) (quoting United States v. Rasberry, 882 F.3d 241, 247 (1st Cir. 2018)). To distinguish between a Terry stop and a de facto arrest, “we inquire, in light of the totality of the circumstances, whether a reasonable person in the suspect's position would have understood her position ‘to be tantamount to being under arrest.'” United States v. Chaney, 647 F.3d 401, 409 (1st Cir. 2011) (quoting United States v. Zapata, 18 F.3d 971, 975 (1st Cir. 1994)). “Where an investigatory stop is justified at its inception, it will generally not morph into a de facto arrest as long as ‘the actions undertaken by the officers following the stop were reasonably responsive to the circumstances justifying the stop in the first place as augmented by information gleaned by the officers during the stop.'” Id. (alterations omitted) (quoting United States v. Trueber, 238 F.3d 79, 92 (1st Cir. 2001)). “This objective, suspect-focused inquiry is informed by our assessment of the reasonableness of the detaining officer or officers' actions in response to developing conditions.” Id.

Gerrish primarily relies on Sibron v. New York, 392 U.S. 40 (1968). In Sibron, the Supreme Court reasoned that when an officer merely saw a defendant talking to people with known substance use disorders and saw nothing pass between them, “[n]othing resembling probable cause existed.” Id. at 62; see also Ybarra v Illinois, 444 U.S. 85, 91 (1979) (“[A] person's mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person.”). However, the First Circuit has distinguished, for purposes of probable cause, between “mere propinquity and culpable propinquity.” ...