UNITED STATES of America, Plaintiff-Appellant, v. Raymond Lee SCOTT, Defendant-Appellee, 450 F.3d 863

ORDER The opinion and dissent filed September 9, 2005, and reported at 424 F.3d 888, is withdrawn, and is replaced by the Amended Opinion and Amended Dissent, 04-10090. The petition for rehearing is otherwise denied. A judge requested a vote on whether to rehear this case en banc. The case failed to receive a majority of the votes of the non-recused active judges in favor of en banc consideration. See Fed. R.App. P. 35. The petition for rehearing en banc is DENIED. No further petitions for rehearing or rehearing en banc will be accepted. OPINION KOZINSKI, Circuit Judge.

We consider whether police may conduct a search based on less than probable cause of an individual released while awaiting trial. This issue is one of first impression in our circuit. Somewhat surprisingly, it is an issue of first impression in any federal circuit and the vast majority of state courts. A lack of binding precedent does not, of course, excuse us from deciding a difficult issue when, as here, it is squarely presented. Facts Scott was arrested in Nevada on state charges of drug possession and released on his own recognizance.

In order to qualify for release, Scott was required to sign a form stating that he agreed to comply with certain conditions.

Among the conditions was consent to “random” drug testing “anytime of the day or night by any peace officer without a warrant,” and to having his home searched for drugs “by any peace officer anytime[,] day or night[,] without a warrant.” There is no evidence that the conditions were the result of findings made after any sort of hearing; rather, the United States concedes that the conditions were merely “checked off by a judge from a standard list of pretrial release conditions.” Based on an informant’s tip, state officers went to Scott’s house and administered a urine test.

The government concedes the tip did not establish probable cause. When Scott tested positive for methamphetamine, the officers arrested him and searched his house. The search ultimately turned up a shotgun. A federal grand jury indicted Scott for unlawfully possessing an unregistered shotgun. The district court granted Scott’s motion to suppress the shotgun and statements he had made to the officers concerning it, reasoning that the officers needed probable cause to justify the war-rantless search. The federal government took an interlocutory appeal pursuant to 18 U.S.C. § 3731. Discussion 1.

We first examine whether the searches — the drug test and the search of Scott’s house — were valid because Scott consented to them as a condition of his release. The government may detain an ar-restee “to ensure his presence at trial,” Bell v. Wolfish, 441 U.S. 520, 536, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979), and may impose some conditions, such as reasonable bail, before releasing him, see United States v. Salerno, 481 U.S. 739, 754, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987).

Many pretrial detainees willingly consent to such conditions, preferring to give up some rights in order to sleep in their own beds while awaiting trial. It may be tempting to say that such transactions — where a citizen waives certain rights in exchange for a valuable benefit the government is under no duty to grant — are always permissible and, indeed, should be encouraged as contributing to social welfare. After all, Scott’s options were only expanded when he was given the choice to waive his Fourth Amendment rights or stay in jail. Cf. Doyle v. Cont'l Ins. Co., 94 U.S. 535, 542, 24 L.Ed. 148 (1877).

But our constitutional law has not adopted this philosophy wholesale. The “unconstitutional conditions” doctrine, cf. Dolan v. City of Tigard, 512 U.S. 374, 385, 114 S.Ct. 2309, 129 L.Ed.2d 304 (1994), limits the government’s ability to exact waivers of rights as a condition of benefits, even when those benefits are fully discretionary. Government is a monopoly provider of countless services, notably law enforcement, and we live in an age when government influence and control are pervasive in many aspects of our daily lives.

Giving the government free rein to grant conditional benefits creates the risk that the government will abuse its power by attaching strings strategically, striking lopsided deals and gradually eroding constitutional protections. Where a constitutional right “functions to preserve spheres of autonomy ... [unconstitutional conditions doctrine protects that [sphere] by preventing governmental end-runs around the barriers to direct commands.” Kathleen M. Sullivan, Unconstitutional Condi tions, 102 Harv. L.Rev. 1413, 1492 (1989); see generally id. at 1489-1505; Richard A.

Epstein, The Supreme Court, 1987 Term-Foreword: Unconstitutional Conditions, State Power, and the Limits of Consent, 102 Harv. L.Rev. 4, 21-25 (1988). The doctrine is especially important in the Fourth Amendment context. Under modern Fourth Amendment juris-pru-dence, whether a search has occurred depends on whether a reasonable expectation of privacy has been violated. See Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring).

While the Katz principle was originally used to expand Fourth Amendment protection to cover government invasions of privacy in public places like phone booths, it can also serve to contract such protection in private places such as homes. As the Court recently explained in Kyllo v. United States, 533 U.S. 27, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001): In assessing when a search is not a search, we have applied somewhat in reverse the principle first enunciated in Katz. ...

As Justice Harlan’s oft-quoted concurrence described it, a Fourth Amendment search occurs when the government violates a subjective expectation of privacy that society recognizes as reasonable. We have subsequently applied this principle to hold that a Fourth Amendment search does not occur — even when the explicitly protected location of a house is concerned — unless “the individual manifested a subjective expectation of privacy in the object of the challenged search,” and “society [is] willing to recognize that expectation as reasonable.” Id. at 32-33, 121 S.Ct. 2038 (quoting California v.

Ciraolo, 476 U.S. 207, 211, 106 S.Ct. 1809, 90 L.Ed.2d 210 (1986)) (citation omitted) (alteration in original); see also United States v. Kincade, 379 F.3d 813, 873 (9th Cir.2004) (en banc) (Kozinski, J., dissenting). The focus on subjective expectations can give rise to the following chain of logic: By assenting to warrantless house searches and random, warrantless urine tests, Scott destroyed his subjective expectation of privacy, and this in turn made his searches no longer searches, depriving him of Fourth Amendment protection altogether.

But the Supreme Court has resisted this logic, recognizing the slippery-slope potential of the Katz doctrine: [I]f the Government were suddenly to announce on nationwide television that all homes henceforth would be subject to warrantless entry, individuals thereafter might not in fact entertain any actual expectation of privacy regarding their homes, papers, and effects....

In such circumstances, where an individual’s subjective expectations had been “conditioned” by influences alien to well-recognized Fourth Amendment freedoms, those subjective expectations obviously could play no meaningful role in ascertaining what the scope of Fourth Amendment protection was. In determining whether a “legitimate expectation of privacy” existed in such cases, a normative inquiry would be proper. Smith v. Maryland, 442 U.S. 735, 740 n. 5, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979).

Pervasively imposing an intrusive search regime as the price of pretrial release, just like imposing such a regime outright, can contribute to the downward ratchet of privacy expectations. While government may sometimes condition benefits on waiver of Fourth Amendment rights — for instance, when dealing with contractors, see Zap v. United States, 328 U.S. 624, 628, 66 S.Ct. 1277, 90 L.Ed. 1477 (1946); Yin v.

California, 95 F.3d 864, 872 (9th Cir.1996) (“It is clear that a contract may under appropriate circumstances diminish (if not extinguish) legitimate expectations of privacy.”), or paying welfare benefits, see Wyman v. James, 400 U.S. 309, 317-18, 91 S.Ct. 381, 27 L.Ed.2d 408 (1971)—its power to do so is not unlimited. Government employees, for example, do not waive their Fourth Amendment rights simply by accepting a government job; searches of government employees must still be reasonable. See Nat’l Treasury Employees Union v.

Von Raab, 489 U.S. 656, 665, 109 S.Ct. 1384, 103 L.Ed.2d 685 (1989) (citing O’Connor v. Ortega, 480 U.S. 709, 717, 107 S.Ct. 1492, 94 L.Ed.2d 714 (1987) (plurality opinion); id. at 731, 107 S.Ct. 1492 (Scalia, J., concurring in the judgment)).

Von Raab also forecloses a milder version of the waiver theory, which would hold that an employee keeps his Fourth Amendment rights but makes all searches reasonable through his consent: The employee’s assent is merely a relevant factor in determining how strong his expectation of privacy is, see id. at 672 n. 2, 109 S.Ct. 1384, and thus may contribute to a finding of reasonableness. See page 872 infra.

The government is obviously subject to no fewer constraints when acting as sovereign than as employer, and deciding whether someone charged with a crime will be incarcerated before a determination of guilt is unquestionably a sovereign prerogative. “[0]ne who has been released on pretrial bail does not lose his or her Fourth Amendment right to be free of unreasonable seizures,” Cruz v.

Kauai County, 279 F.3d 1064, 1068 (9th Cir.2002), and we have previously held that probationers (a group more readily subject to restrictions than pretrial releasees, see pages 871-74 infra) do not waive their Fourth Amendment rights by agreeing, as a condition of probation, to “submit [their] person and property to search at any time upon request by a law enforcement officer.” United States v.

Consuelo-Gonzalez, 521 F.2d 259, 261 (9th Cir.1975) (en banc); see also id. at 262 (“[A]ny search made pursuant to the condition included in the terms of probation must necessarily meet the Fourth Amendment’s standard of reasonableness.”). Therefore, Scott’s consent to any search is only valid if the search in question (taking the fact of consent into account) was reasonable. To this inquiry we now turn. 2. Usually, Fourth Amendment reasonableness means that a search or seizure must be supported by probable cause, though pat-downs and similar minor intrusions need only be supported by reasonable suspicion.

See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); United States v. Brignoni-Ponce, 422 U.S. 873, 881-82, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975). But we relax these requirements “when ‘special needs, beyond the normal need for law enforcement,’ ” make an insistence on the otherwise applicable level of suspicion “ ‘impracticable.’ ” Griffin v. Wisconsin, 483 U.S. 868, 873, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987) (quoting New Jersey v. T.L.O., 469 U.S. 325, 351, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985) (Blackmun, J., concurring in the judgment)); City of Indianapolis v.

Edmond, 531 U.S. 32, 37, 121 S.Ct. 447, 148 L.Ed.2d 333 (2000). Thus, when probable cause would normally be required, “special needs” can justify searches based on less, see id.; Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 653, 664-65, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995) (suspicionless drug testing of student athletes). When reasonable suspicion would normally be required, special needs may justify suspicionless seizures, see Edmond, 531 U.S. at 39, 121 S.Ct. 447 (citing Mich. Dep’t of State Police v. Sitz, 496 U.S. 444, 110 S.Ct. 2481, 110 L.Ed.2d 412 (1990) (sobriety checkpoint), as such a case).

The United States argues here that searching pretrial releasees by testing them for drugs serves two special needs: (1) protecting the community from criminal defendants released pending trial and (2) ensuring that defendants show up at trial. But — at most — only the second of these claimed needs is, as the special needs exception requires, “beyond the normal need for law enforcement.” Two recent Supreme Court cases illustrate this important limitation on the special needs doctrine.

In Edmond, the Court invalidated a roadside checkpoint program aimed at enforcing drug laws through drug-sniffing dogs and visual inspection of cars. See 531 U.S. at 35, 121 S.Ct. 447. The Court started with the observation that the suspicionless checkpoint stops were Fourth Amendment seizures requiring individualized suspicion. See id. at 40-41, 121 S.Ct. 447. It noted that it had “never approved a checkpoint program whose primary purpose was to detect evidence of ordinary criminal wrongdoing.” Id. at 41, 121 S.Ct. 447.

Rather, suspicionless checkpoint stops are constitutional only if their primary purpose is separate from the “general interest in crime control.” Id. (quoting Delaware v. Prouse, 440 U.S. 648, 659 n. 18, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979)) (internal quotation marks omitted). Programs designed to secure the border, see United States v. Martinez-Fuerte, 428 U.S. 543, 556-57, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976), or promote highway safety, see Sitz, 496 U.S. at 451, 110 S.Ct. 2481, are thus different from programs whose purpose is to deter and punish violations of ordinary criminal laws.

For much the same reason, in Ferguson v. City of Charleston, 532 U.S. 67, 121 S.Ct. 1281, 149 L.Ed.2d 205 (2001), the Court invalidated a state hospital’s practice of testing pregnant women for cocaine and providing the results to the police. The Court had upheld suspicionless drug testing programs before, but in those cases, “the ‘special need’ ... was one divorced from the State’s general interest in law enforcement.” Id. at 79, 121 S.Ct. 1281; see also id. at 77, 121 S.Ct. 1281 (citing Skinner v. Ry.

Labor Executives’ Ass’n, 489 U.S. 602, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989) (drug testing of railroad employees to prevent railway accidents); Von Raab, 489 U.S. at 656, 109 S.Ct. 1384 (drug testing of Customs employees to ensure their integrity and physical fitness); Vernonia, 515 U.S. at 646, 115 S.Ct. 2386 (drug testing of student athletes to maintain order in schools)). In Ferguson, however, “the central and indispensable feature of the policy from its inception was the use of law enforcement to coerce the patients into substance abuse treatment.” Id. at 80, 121 S.Ct. 1281.

The Court considered the government’s argument that the “ultimate purpose” of the testing program was the “beneficent” goal of “protecting the health of both mother and child,” but nonetheless concluded that “the purpose actually served ... ‘is ultimately indistinguishable from the general interest in crime control.’ ” Id. at 81, 121 S.Ct. 1281 (quoting Edmond, 531 U.S. at 44, 121 S.Ct. 447). Edmond’s and Ferguson’s focus on “primary” or “ultimate” purposes requires us to examine the various possible purposes of the search here and determine which are primary.

Because the subjective intent of the officers carrying out the search generally plays no role in assessing its constitutionality, see Whren v. United States, 517 U.S. 806, 813, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996), special needs analysis calls for an inquiry into “programmatic purposes,” see Edmond, 531 U.S. at 45-47, 121 S.Ct. 447; Ferguson, 532 U.S. at 81, 121 S.Ct. 1281 (“In looking to the programmatic purpose, we consider all the available evidence in order to determine the relevant primary purpose.”).

The government’s first identified purpose, protecting the community, presumably means protecting it from the criminal activities of pretrial releasees generally. See Nev.Rev.Stat. § 178.4851(2); see also id. § 178.4853(9) (listing “[t]he likelihood of more criminal activity by [the releasee] after he is released” as one factor to be considered before release without bail). The dissent points out correctly that the “ ‘government’s interest in preventing crime by ar-restees is both legitimate and compelling,’ ” dissent at 883 (quoting Salerno, 481 U.S. at 749, 107 S.Ct. 2095).

But the government’s interest in preventing crime by anyone is legitimate and compelling. See, e.g., United States v. Restrepo, 946 F.2d 654, 674 (9th Cir.1991) (en banc) (Norris, J., dissenting) (“It goes without saying that the government has a compelling interest in protecting the community from crime.”). Crime prevention is a quintessential general law enforcement purpose and therefore is the exact opposite of a special need.

The second purpose, ensuring that pretrial releasees appear in court, fares somewhat better: While it has a law enforcement component — a defendant’s failure to appear in court when ordered to do so is a criminal offense, see Nev.Rev.Stat. § 199.335 — it also implicates the efficient functioning and integrity of the judicial system, cf. State v. Ullring, 741 A.2d 1065, 1068 (Me.1999), a purpose separate from the general interest in crime control. We assume for purposes of our analysis that the non-law-enforcement purpose— the interest in judicial efficiency — is “primary” in this case.

But the connection between the object of the test (drug use) and the harm to be avoided (non-appearance in court) is tenuous. One might imagine that a defendant who uses drugs while on pretrial release could be so overcome by the experience that he misses his court date. Or, having made it to court, he may be too mentally impaired to participate meaningfully in the proceedings. These are conceivable justifications, but the government has produced nothing to suggest these problems are common enough to justify intruding on the privacy rights of every single defendant out on pretrial release.

And it has produced nothing to suggest that Nevada found Scott to be particularly likely to engage in future drug use that would decrease his likelihood of appearing at trial. Drug use during pretrial release may also result in a defendant’s general unreliability or, more nefariously, an increased likelihood of absconding. Whether this is plausible depends on whether drug use is a good predictor of these harms — a case that must be established empirically by the government when it seeks to impose the drug testing condition. But Nevada never attempted such an empirical demonstration in this case.

The Supreme Court has criticized assertions of special needs based on “hypothetical” hazards that are unsupported by “any indication of a concrete danger demanding departure from the Fourth Amendment’s main rule.” Chandler, 520 U.S. at 319, 117 S.Ct. 1295. “A demonstrated problem” of drug use leading to nonappearance “would shore up” the government’s assertion of a special need. See id.

As far as we can tell, the Nevada legislature has not taken the categorical position that drug use among pretrial releasees substantially impairs their tendency to show up in court; instead, it has largely left appropriate release conditions to be determined in individual cases. See Nev.Rev.Stat. §§ 178.484-.4853.

Nor are courts instructed to limit their consideration to the non-law-enforcement purposes that might justify special needs searches: Release conditions may both “protect the health, safety and welfare of the community and ... ensure that [the releasee] will appear at all times and places ordered by the court.” See id. § 178.4851(2) (emphasis added); see also id. § 178.4853(7)-(9). We are thus unable to conclude that the search regime to which Scott was subjected was necessary to ensure his appearance at trial.

We are especially reluctant to indulge the claimed special need here because Scott’s privacy interest in his home, where the officers came to demand the urine sample, is at its zenith. “[PJrivate residences are places in which the individual normally expects privacy free of governmental intrusion not authorized by a warrant, and that expectation is plainly one that society is prepared to recognize as justifiable.” United States v. Karo, 468 U.S. 705, 714, 104 S.Ct. 3296, 82 L.Ed.2d 530 (1984); see also Payton v.

New York, 445 U.S. 573, 589, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) (“The Fourth Amendment protects the individual’s privacy in a variety of settings. In none is the zone of privacy more clearly defined than when bounded by the unambiguous physical dimensions of an individual’s home.... ”). Unlike public school students, who have limited privacy interests because of the state’s special custodial role, see Bd. of Educ. of Indep. Sch. Dist. No. 92 v.

Earls, 536 U.S. 822, 830, 122 S.Ct. 2559, 153 L.Ed.2d 735 (2002), Customs employees, who occupy sensitive government positions, see Von Raab, 489 U.S. at 669, 109 S.Ct. 1384, or drivers and railway employees, whose activities impose safety risks on others, see Sitz, 496 U.S. at 451, 110 S.Ct. 2481; Skinner, 489 U.S. at 620, 109 S.Ct. 1402, pretrial releasees are ordinary people who have been accused of a crime but are presumed innocent. We have already noted that Scott’s assent to his release conditions does not by itself make an otherwise unreasonable search reasonable, see

section 1 supra; to the extent his assent decreased his reasonable expectation of privacy, we hold that the decrease was insufficient to eliminate his expectation of privacy in his home. Griffin, where the Supreme Court upheld the search of a probationer’s home without probable cause, is not to the contrary. Griffin was on probation rather than pretrial release. See 483 U.S. at 870, 107 S.Ct. 3164.

The Court wrote that “[a] State’s operation of a probation system, like its operation of a school, government office or prison,” presents special needs, id. at 873-74, 107 S.Ct. 3164, and that the goals of probation would be disrupted by a warrant or probable cause requirement, id. at 875-80, 107 S.Ct. 3164. But pretrial releasees are not probationers. “Probation, like incarceration, is ‘a form of criminal sanction imposed by a court upon an offender after verdict, finding, or plea of guilty.’ ” Id. at 874, 107 S.Ct. 3164 (quoting G.

Killinger et al., Probation and Parole in the Criminal Justice System 14 (1976)). Years later, the Ferguson Court explained that “Griffin is properly read as limited by the fact that probationers have a lesser expectation of privacy than the public at large.” 532 U.S. at 80 n. 15, 121 S.Ct. 1281. People released pending trial, by contrast, have suffered no judicial abridgment of their constitutional rights.

Because the government failed to demonstrate that Nevada had special needs for obtaining the drug-testing release condition, it cannot justify the search — testing Scott for drugs without probable cause— using this approach. As discussed above, we hold only that the government has not made the requisite special needs showing in this case: It has not, for example, demonstrated a pattern of “drug use leading to nonappearance” in court, p. 870 supra, nor pointed to an individualized determination that Scott’s drug use was likely to lead to his nonappearance.

The government in this case has relied on nothing more than a generalized need to protect the community and a blanket assertion that drug-testing is needed to ensure Scott’s appearance at trial. Both are insufficient. We thus cannot validate Scott’s search under the special needs doctrine. 3. Nor was the search reasonable under a more general “totality of the circumstances” approach. Scott’s position was in some ways similar to that of the probationer whose reasonable-suspicion search was upheld on this theory in United States v. Knights, 534 U.S. 112, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001).

But in upholding that search, the Supreme Court stressed Knights’s status as a probationer: [T]he reasonableness of a search is determined “by assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.” Knights’ status as a probationer subject to a search condition informs both sides of that balance. Id. at 118-19, 122 S.Ct. 587 (quoting Wyoming v. Houghton, 526 U.S. 295, 300, 119 S.Ct. 1297, 143 L.Ed.2d 408 (1999)).

The reasoning from Griffin was thus prominently on display in Knights. On the privacy side, probationers have sharply reduced liberty and privacy interests: Probation is a form of criminal punishment, so “probationers ‘do not enjoy “the absolute liberty to which every citizen is entitled.’”” Id. at 119, 122 S.Ct. 587 (quoting Griffin, 483 U.S. at 874, 107 S.Ct. 3164 (quoting Morrissey v. Brewer, 408 U.S. 471, 480, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972))). Though the Knights Court declined to address the consent rationale, see id. at 118, 122 S.Ct. 587; see also

section 1 supra, it did reason that Knights’s signature on a form purporting to authorize searches without a warrant or “reasonable cause” as a condition of probation, reduced his reasonable expectation of privacy, id. at 114, 119-20, 122 S.Ct. 587.

The government, for its part, has an enhanced interest in surveillance and control because “ ‘the very assumption of ... probation’ is that the probationer ‘is more likely than the ordinary citizen to violate the law,’ ” id. at 120, 122 S.Ct. 587 (quoting Griffin, 483 U.S. at 880, 107 S.Ct. 3164), and probation is also concerned with reintegrating the probationer into the community, see id. at 120-21, 122 S.Ct. 587.

The dissent’s inability to see a “constitutionally relevant” distinction, see dissent at 883, between someone who has been convicted of a crime and someone who has been merely accused of a crime but is still presumed innocent, overlooks both common sense and our caselaw. Recently, in Kincade, a plurality of this court noted “the well-established principle that parolees and other conditional releasees are not entitled to the full panoply of rights and protections possessed by the general public.” 379 F.3d at 833 (plurality opinion).

It stressed the “transformative changes wrought by a lawful conviction and accompanying term of conditional release,” id. at 834, and the “severe and fundamental disruption in the relationship between the offender and society, along with the government’s concomitantly greater interest in closely monitoring and supervising conditional releasees,” occasioned by a conviction and imposition of release conditions, id. at 835. For our purposes, the lesson of Knights and Kincade is the same as that of Griffin: Probationers are different.

Like Knights, Scott had a reduced expectation of privacy because he had signed a form that, on its face, explicitly waived the warrant requirement and implicitly (through the use of the word “random”) waived the probable cause requirement for drug testing. But Scott, far from being a post-conviction conditional releasee, was out on his own recognizance before trial. His privacy and liberty interests were far greater than a probationer’s.

Moreover, the assumption that Scott was more likely to commit crimes than other members of the public, without an individualized determination to that effect, is contradicted by the presumption of innocence: That an individual is charged with a crime cannot, as a constitutional matter, give rise to any inference that he is more likely than any other citizen to commit a crime if he is released from custody. Defendant is, after all, constitutionally presumed to be innocent pending trial, and innocence can only raise an inference of innocence, not of guilt.

While the Supreme Court has upheld the constitutionality of pretrial detention on grounds of dangerousness, the Court stressed that the statute it was upholding contained important safeguards, including the requirements that defendant be accused of a particularly serious crime and that dangerousness be proved to a neutral judicial officer by clear and convincing evidence. See Salerno, 481 U.S. at 747, 750-52, 107 S.Ct. 2095; cf. United States v.

Kills Enemy, 3 F.3d 1201, 1203 (8th Cir.1993) (contrasting pretrial releasees with convicted persons awaiting sentence, and noting that the latter are “no longer entitled to a presumption of innocence or presumptively entitled to [their] freedom”). Neither Salerno nor any other case authorizes detaining someone in jail while awaiting trial, or the imposition of special bail conditions, based merely on the fact of arrest for a particular crime.

To the contrary, Salerno was explicit about what must occur under the federal Bail Reform Act — beyond arrest — before a pretrial criminal defendant could be detained: “In a full-blown adversary hearing, the Government must convince a neutral decision-maker by clear and convincing evidence that no conditions of release can reasonably assure the safety of the community or any person.” Salerno, 481 U.S. at 750, 107 S.Ct. 2095. Thus, the Supreme Court upheld the constitutionality of a bail system where pretrial defendants could be detained only if the need to detain them was demonstrated on an individualized basis.

The arrest alone did not establish defendant’s dangerousness; it merely triggered the ability to hold a hearing during which such a determination might be made. It follows that if a defendant is to be released subject to bail conditions that will help protect the community from the risk of crimes he might commit while on bail, the conditions must be justified by a showing that defendant poses a heightened risk of misbehaving while on bail.

The government cannot, as it is trying to do in this case, short-circuit the process by Claiming that the arrest itself is sufficient to establish that the conditions are required. Finally, the government has no concern with integrating people like Scott, who has never left the community, back into the community. The government’s interests in surveillance and control as to a pretrial releasee are thus considerably less than in the case of a probationer. A search of Scott or his house on anything less than probable cause is not supported by the totality of the circumstances in this case. 4.

Nevada’s decision to test Scott for drugs without probable cause does not pass constitutional muster under any of the three approaches: consent, special needs or totality of the circumstances. Since the government concedes there was no probable cause to test Scott for drugs, Scott’s drug test violated the Fourth Amendment. Probable cause to search Scott’s house did not exist until the drug test came back positive. The validity of the house search, which led to both the shotgun and Scott’s statement about the shotgun, is derivative of the initial drug test.

That search is likewise invalid; its fruits must be suppressed. We AFFIRM the district court’s order granting Scott’s motion to suppress. . The dissent points to only two states whose supreme courts have addressed this issue: Maine and California. See dissent at 878 (citing State v. Ullring, 741 A.2d 1065 (Me. 1999); In re York, 9 Cal.4th 1133, 40 Cal.Rptr.2d 308, 892 P.2d 804 (1995)). It is unclear whether those cases would come out the same way today, as both were decided before United States v. Knights, 534 U.S. 112, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001) (discussed in

section 3 infra) and Ferguson v. City of Charleston, 532 U.S. 67, 121 S.Ct. 1281, 149 L.Ed.2d 205 (2001) (discussed in

section 2 infra). Further, the California case involved a different procedural posture than our case, as it came up on habeas review rather than on direct appeal. See York, 40 Cal.Rptr.2d 308, 892 P.2d at 806. Appellate courts in Indiana and the District of Columbia also have addressed the issue, with mixed results. See Steiner v. State, 763 N.E.2d 1024 (Ind.Ct.App.2002); Harvey v. State, 751 N.E.2d 254 (Ind.Ct.App.2001); Oliver v. United States, 682 A.2d 186 (D.C.1996).

Although the D.C. court upheld certain bail conditions pre-Knights and Ferguson, see Oliver, 682 A.2d at 187, the Indiana court struck down a pretrial release condition imposing random drug screens as unreasonable post-Knights and Ferguson. See Steiner, 763 N.E.2d at 1028. Earlier, the Indiana court declined to reach the same issue in Haivey, finding the defendant had waived his objection to the condition of release.

See Harvey, 751 N.E.2d at 259. .Though Scott's urine sample tested positive in both the field test and a subsequent test using the enzyme multiplied immunoassay technique, he claimed that he had not used methamphetamine since his arrest. Because Scott continued to dispute the accuracy of the tests, the state tested the same sample using the gas chromatography/mass spectrometry method, which is considered to be more accurate, see Schaill v. Tippecanoe County Sch. Corp., 864 F.2d 1309, 1311 (7th Cir.1989).

This third test came back negative, supporting Scott’s contention that the initial positive results were due to his allergy medication. . It is unlawful for any person “to receive or possess a firearm which is not registered to him in the National Firearms Registration and Transfer Record.” 26 U.S.C. § 5861(d). . The dissent mistakenly describes this as "a question of whether the Fourth Amendment permits Scott to waive his Fourth Amendment rights.” Dissent at 886-87. No one disputes that Fourth Amendment rights can be waived. See Schneckloth v. Bustamonte, 412 U.S. 218, 228, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973).

The question here is whether the government can induce Scott to waive his Fourth Amendment rights by conditioning pretrial release on such a waiver. . We assume for purposes of our analysis that releasing Scott on his own recognizance was a discretionary decision. We note, however, that under the Excessive Bail Clause (to the extent it applies against the states), "the Government’s proposed conditions of release or detention [must] not be 'excessive' in light of the perceived evil.” Salerno, 481 U.S. at 754, 107 S.Ct. 2095; see also Schilb v.

Kuebel, 404 U.S. 357, 365, 92 S.Ct. 479, 30 L.Ed.2d 502 (1971) ("[T]he Eighth Amendment's proscription of excessive bail has been assumed to have application to the States through the Fourteenth Amendment.”); Browning-Ferns Indus. of Vt., Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 284, 109 S.Ct. 2909, 106 L.Ed.2d 219 (1989) (O’Connor, J., dissenting in part) (similar).

There may thus be cases where the risk of flight is so slight that any amount of bail is excessive; release on one's own recognizance would then be constitutionally required, which could further limit the government’s discretion to fashion conditions of release. The dissent concedes that "there are . .. limits to what the government may demand from an OR releasee.” Dissent at 887. Indeed, the fact that a state may be able to deny bail to someone — or indeed everyone — who is accused of a crime says nothing about the amount of bail it may set once it decides to release an accused pending trial.

It would be highly impractical and politically impossible for a slate to jail all criminal defendants— including those accused of traffic offenses— pending trial. The state must thus make pragmatic decisions about releasing some while detaining others. The right to keep someone in jail does not in any way imply the right to release that person subject to unconstitutional conditions — such as chopping off a finger or giving up one’s first-born.

Once a state decides to release a criminal defendant pending trial, the state may impose only such conditions as are constitutional, including compliance with the prohibition against excessive bail. In some instances — when flight would be irrational, such as when the crime involves a minor traffic infraction — any amount of bail may be excessive because the bail amount would not serve the purpose of ensuring appearance in court to’ answer the charges.

For example, a person arrested for speeding on a California highway cannot be detained pending trial, but must be released after signing a "notice to appear.” See Cal. Veh.Code §§ 40500(a), 40504(a). This appears to be a legislative determination that a person arrested for violating the Vehicle Code who satisfies the conditions of

section 40504(

a) is not a sufficient flight risk or danger to the community to require incarceration pending trial. This legislative determination that bail would serve no relevant purpose implies that, for such a violation, any amount of bail would be constitutionally excessive. . In fact, two sentences after the phrase quoted by the dissent, the Court in Salerno describes the government’s interest as a "general concern with crime prevention." Salerno, 481 U.S. at 749, 107 S.Ct. 2095. . To be sure, such a showing is "not in all cases necessary.” Chandler, 520 U.S. at 319, 117 S.Ct. 1295.

In Von Raab, the Supreme Court upheld a regime of suspicionless testing of Customs employees even though it was not "implemented in response to any perceived drug problem” and had not "led to the discovery of a significant number of drug users.” 489 U.S. at 673, 109 S.Ct. 1384. But, as the Court later explained in Chandler, the Customs employees in Von Raab were directly involved in drug interdiction, had "access to vast sources of valuable contraband,” 520 U.S. at 321, 117 S.Ct. 1295 (quoting Von Raab, 489 U.S. at 669, 109 S.Ct. 1384) (internal quotation marks omitted) and were exposed to bribery attempts.

Von Raab, in other words, was “[hjardly a decision opening broad vistas for suspicionless searches” and "must be read in its unique context.” Id. at 321, 117 S.Ct. 1295. Here there is no obvious connection between drug use and appearance in court sufficient to obviate the need for a showing of factual nexus. . This is different from the federal bail system. Unlike the Nevada legislature, Congress seems to have recognized some connection between drug use and nonappearance at trial. See 18 U.S.C. §§ 3142(c)(l)(B)(ix), (x).

Had defendant been on bail under the federal system, such a legislative finding, coupled with the fact that Scott was arrested for a drug-related crime, may have warranted a different outcome. We express no view on this point except to note that any such determination will require a careful examination of the federal Bail Reform Act. . The dissent does no better. See dissent at 884. After speculating for one paragraph why the state might have linked drug testing to attendance at trial, the dissent ends up justifying the drug testing only by referring once again to general crime prevention purposes.

Id. at 884-85. . The balance usually will be struck differently in cases where the defendant is required to report for drug-testing at a location away from his home. . It is true, as the dissent points out, that pretrial releasees must suffer certain burdens that ordinary citizens do not, such as the requirement that they "seek formal permission from the court . .. before ... traveling] outside the jurisdiction." Dissent at 885. These requirements, however, are unquestionably related to the government's special need to ensure that the defendant not abscond. See page 869 supra.

Whether the accused may be made to suffer other burdens that are not designed to ensure his appearance in court is the very question we are now considering. . We do not hold that the government can never justify drug-testing as a condition of pretrial release. Such a condition may well be justified based on a legislative finding, see, e.g., note 8 supra, or an individualized finding that defendant's ability to appear in court will be impaired absent drug-testing.

Any unpublished dispositions of our court construing Scott as containing a categorical prohibition on drug-testing bail conditions are not prece-dential, see 9th Cir. R. 36-3, and are, in any event, superseded by this amended opinion. . We do not decide what types of individualized and/or legislative findings might satisfy a special needs showing; whatever is required, the government did not accomplish it in this case. . It is no answer to point out, as does the dissent, that "individuals confined in prison pending trial have no greater privacy rights than other prisoners.” Dissent at 878.

The ability of prison officials to search a pretrial detainee or his cell is justified by institutional needs such as prison security and escape prevention. See Hudson v. Palmer, 468 U.S. 517, 529, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984). These justifications are inapplicable when a defendant is awaiting trial outside of a detention facility. . Prior convictions and other reliably determined facts relating to dangerousness may be relevant to such a determination, but the mere fact that the defendant is charged with a crime cannot be used as a basis for a determination of dangerousness.