United States v. Scott ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 04-10090
Plaintiff-Appellant,
v.  D.C. No.
CR-03-00122-DWH
RAYMOND LEE SCOTT,
OPINION
Defendant-Appellee.

Appeal from the United States District Court
for the District of Nevada
David Warner Hagen, District Judge, Presiding
Argued and Submitted
December 10, 2004—San Francisco, California
Filed September 9, 2005
Before: Alex Kozinski, William A. Fletcher and
Jay S. Bybee, Circuit Judges.
Opinion by Judge Kozinski;
Dissent by Judge Bybee
12781
12784 UNITED STATES v. SCOTT
COUNSEL
Paul L. Pugliese, Assistant United States Attorney, Reno,
Nevada, for the plaintiff-appellant.
Michael K. Powell and Cynthia S. Hahn, Reno, Nevada, for
the defendant-appellee.
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 cir-
cuit. Somewhat surprisingly, it is an issue of first impression
UNITED STATES v. SCOTT 12785
in any federal circuit and the vast majority of state courts.1 A
lack of binding precedent does not, of course, excuse us from
deciding a difficult issue when, as here, it is squarely presented.2
Facts
Scott was arrested for drug possession crimes under state
law and released on his own recognizance. Among the condi-
tions of his release 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.”
1
The dissent points to only two states whose supreme courts have
addressed this issue: Maine and California. See dissent at 12807 (citing
State v. Ullring, 741 A.2d 1065 (Me. 1999); In re York, 892 P.2d 804
(Cal. 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 (2001) (discussed in section 3 infra) and Ferguson v. City of Charles-
ton, 532 U.S. 67 (2001) (discussed in section 2 infra). Further, the Califor-
nia case involved a different procedural posture than our case, as it came
up on habeas review rather than on direct appeal. See York, 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 Harvey, finding the defendant had
waived his objection to the condition of release. See Harvey, 751 N.E.2d
at 259.
2
The dissent implies that this is not the appropriate case in which to
decide the issue because “no state is a party.” Dissent at 12801. But if not
now, when? A Fourth Amendment issue is most likely to come before us
with a state as a party in the context of a habeas petition. However, due
to AEDPA’s standard of review, see 28 U.S.C. § 2254(d), and the limita-
tions placed on the scope of our habeas review by Stone v. Powell, 428
U.S. 465, 481-82 (1976), we wouldn’t be able to decide such an issue as
a matter of first impression.
12786 UNITED STATES v. SCOTT
Based on an informant’s tip, officers went to Scott’s house
and administered a urine test. The government concedes the
tip did not establish probable cause. When Scott tested posi-
tive for methamphetamine,3 the officers arrested him and
searched his house. The search ultimately turned up a shot-
gun.
A federal grand jury indicted Scott for unlawfully possess-
ing an unregistered shotgun.4 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 warrantless 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.5
3
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.
4
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).
5
The dissent mistakenly describes this as “a question of whether the
Fourth Amendment permits Scott to waive his Fourth Amendment rights.”
Dissent at 12821. No one disputes that Fourth Amendment rights can be
waived. See Schneckloth v. Bustamonte, 412 U.S. 218, 228 (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.
UNITED STATES v. SCOTT 12787
[1] The government may detain an arrestee “to ensure his
presence at trial,” Bell v. Wolfish, 441 U.S. 520, 536 (1979),
and may impose some conditions, such as reasonable bail,
before releasing him, see United States v. Salerno, 481 U.S.
739, 754 (1987). Many pre-trial detainees willingly consent to
such conditions, preferring to give up some rights in order to
sleep in their own beds while awaiting trial.
[2] It may be tempting to say that such transactions—where
a citizen waives certain rights in exchange for a valuable ben-
efit the government is under no duty to grant—are always per-
missible 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 Amend-
ment rights or stay in jail. Cf. Doyle v. Cont’l Ins. Co., 94
U.S. 535, 542 (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 (1994), limits the government’s ability to exact
waivers of rights as a condition of benefits, even when those
benefits are fully discretionary.6 Government is a monopoly
6
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; see
also Schilb v. Kuebel, 404 U.S. 357, 365 (1971) (“[T]he Eighth Amend-
ment’s proscription of excessive bail has been assumed to have application
to the States through the Fourteenth Amendment.”); Browning-Ferris
Indus. of Vt., Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 284 (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 12822. Indeed, the fact that
a state may be able to deny bail to someone—or indeed everyone—who
12788 UNITED STATES v. SCOTT
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 gov-
ernment 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 “func-
tions to preserve spheres of autonomy . . . [u]nconstitutional
conditions doctrine protects that [sphere] by preventing gov-
ernmental end-runs around the barriers to direct commands.”
Kathleen M. Sullivan, Unconstitutional Conditions, 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).
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 impracti-
cal and politically impossible for a state 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 oth-
ers. 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 prohi-
bition 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 pur-
pose implies that, for such a violation, any amount of bail would be consti-
tutionally excessive.
UNITED STATES v. SCOTT 12789
[3] The doctrine is especially important in the Fourth
Amendment context. Under modern Fourth Amendment juris-
prudence, 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 (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 (2001):
In assessing when a search is not a search, we have
applied somewhat in reverse the principle first enun-
ciated in Katz. . . . As Justice Harlan’s oft-quoted
concurrence described it, a Fourth Amendment
search occurs when the government violates a sub-
jective 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 indi-
vidual manifested a subjective expectation of privacy
in the object of the challenged search,” and “society
[is] willing to recognize that expectation as reason-
able.”
Id. at 32-33 (quoting California v. Ciraolo, 476 U.S. 207, 211
(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
12790 UNITED STATES v. SCOTT
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 “con-
ditioned” 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 (1979).
[4] Pervasively imposing an intrusive search regime as the
price of pre-trial release, just like imposing such a regime out-
right, 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 (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) legiti-
mate expectations of privacy.”), or paying welfare benefits,
see Wyman v. James, 400 U.S. 309, 317-18 (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 reason-
able. See Nat’l Treasury Employees Union v. Von Raab, 489
U.S. 656, 665 (1989) (citing O’Connor v. Ortega, 480 U.S.
UNITED STATES v. SCOTT 12791
709, 717 (1987) (plurality opinion); id. at 731 (Scalia, J., con-
curring 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, and thus may
contribute to a finding of reasonableness. See pages 12798-99
infra.
[5] The government is obviously subject to no fewer con-
straints when acting as sovereign than as employer, and decid-
ing whether someone charged with a crime will be
incarcerated before a determination of guilt is unquestionably
a sovereign prerogative. “[O]ne who has been released on pre-
trial 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 pre-trial releasees, see pages 12798-800 infra) do not
waive their Fourth Amendment rights by agreeing, as a condi-
tion of probation, to “submit [their] person and property to
search at any time upon request by a law enforcement offi-
cer.” 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 proba-
tion must necessarily meet the Fourth Amendment’s standard
of reasonableness.”).
[6] 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.
[7] 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 (1968); United States v. Brignoni-Ponce, 422 U.S. 873,
12792 UNITED STATES v. SCOTT
881-82 (1975). But we relax these requirements “when ‘spe-
cial needs, beyond the normal need for law enforcement,’ ”
make an insistence on the otherwise applicable level of suspi-
cion “ ‘impracticable.’ ” Griffin v. Wisconsin, 483 U.S. 868,
873 (1987) (quoting New Jersey v. T.L.O., 469 U.S. 325, 351
(1985) (Blackmun, J., concurring in the judgment)); City of
Indianapolis v. Edmond, 531 U.S. 32, 37 (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 (1995) (suspicionless
drug testing of student athletes). When reasonable suspicion
would normally be required, special needs may justify suspi-
cionless seizures, see Edmond, 531 U.S. at 39 (citing Mich.
Dep’t of State Police v. Sitz, 496 U.S. 444 (1990) (sobriety
checkpoint), as such a case).
The government argues here that searching pre-trial
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. The Court started with the observa-
tion that the suspicionless checkpoint stops were Fourth
Amendment seizures requiring individualized suspicion. See
id. at 40-41. It noted that it had “never approved a checkpoint
program whose primary purpose was to detect evidence of
ordinary criminal wrongdoing.” Id. at 41. Rather, suspicion-
less checkpoint stops are constitutional only if their primary
purpose is separate from the “general interest in crime con-
trol.” Id. (quoting Delaware v. Prouse, 440 U.S. 648, 659
n.18 (1979)) (internal quotation marks omitted). Programs
UNITED STATES v. SCOTT 12793
designed to secure the border, see United States v. Martinez-
Fuerte, 428 U.S. 543, 556-57 (1976), or promote highway
safety, see Sitz, 496 U.S. at 451, are thus different from pro-
grams whose purpose is to deter and punish violations of ordi-
nary criminal laws.
For much the same reason, in Ferguson v. City of Charles-
ton, 532 U.S. 67 (2001), the Court invalidated a state hospi-
tal’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 gen-
eral interest in law enforcement.” Id. at 79; see also id. at 77
(citing Skinner v. Ry. Labor Executives’ Ass’n, 489 U.S. 602
(1989) (drug testing of railroad employees to prevent railway
accidents); Von Raab, 489 U.S. at 656 (drug testing of Cus-
toms employees to ensure their integrity and physical fitness);
Vernonia, 515 U.S. at 646 (drug testing of student athletes to
maintain order in schools)). In Ferguson, however, “the cen-
tral 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. 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 indistin-
guishable from the general interest in crime control.’ ” Id. at
81 (quoting Edmond, 531 U.S. at 44).
[8] Edmond’s and Ferguson’s focus on “primary” or “ulti-
mate” 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 constitutional-
ity, see Whren v. United States, 517 U.S. 806, 813 (1996),
special needs analysis calls for an inquiry into “programmatic
purposes,” see Edmond, 531 U.S. at 45-47; Ferguson, 532
U.S. at 81 (“In looking to the programmatic purpose, we con-
12794 UNITED STATES v. SCOTT
sider all the available evidence in order to determine the rele-
vant primary purpose.”).
[9] The government’s first identified purpose, protecting
the community, presumably means protecting it from the
criminal activities of pre-trial releasees. See Nev. Rev. Stat.
§ 178.4851(2); see also id. § 178.4853(9) (listing “[t]he likeli-
hood of more criminal activity by [the releasee] after he is
released” as one factor to be considered before release with-
out bail). The dissent points out correctly that the “ ‘govern-
ment’s interest in preventing crime by arrestees is both
legitimate and compelling,’ ” dissent at 12816 (quoting
Salerno, 481 U.S. at 749). 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 say-
ing that the government has a compelling interest in protect-
ing the community from crime.”).7 Crime prevention is a
quintessential general law enforcement purpose and therefore
is the exact opposite of a special need.
The second purpose, ensuring that pre-trial releasees appear
in court, fares somewhat better: While it has a law enforce-
ment 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.
[10] We assume for purposes of our analysis that the non-
law-enforcement purpose—the interest in judicial efficiency
—is “primary” in this case. It remains to determine whether
this need “is important enough to override the individual’s
7
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.
UNITED STATES v. SCOTT 12795
acknowledged privacy interest[ and] sufficiently vital to sup-
press the Fourth Amendment’s normal requirement of indi-
vidualized suspicion,” Chandler v. Miller, 520 U.S. 305, 318
(1997) (striking down a program of suspicionless drug testing
of candidates for public office because this showing had not
been made), and then weigh it against “the intrusion on the
individual’s interest in privacy,” Ferguson, 532 U.S. at 78.
[11] To begin with, the connection between the object of
the test (drug use) and the harm to be avoided (nonappearance
in court) is not obvious. The defendant may use drugs while
on pre-trial release and be so overcome by the experience—
he’s in a drug-induced stupor or in a hospital emergency room
—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
they strike us as highly unlikely. The government has pro-
duced nothing to suggest these are common enough problems
to justify intruding on the privacy rights of every single defen-
dant out on pre-trial release. Drug use during pre-trial 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 pre-
dictor of these harms—a case that must be established empiri-
cally by the government that seeks to impose the drug testing
condition.
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. “A demonstrated problem” of drug use leading
to nonappearance “would shore up” the government’s asser-
tion of a special need. See id.8 As far as we can tell, the
8
To be sure, such a showing is “not in all cases necessary.” Chandler,
520 U.S. at 319. In Von Raab, the Supreme Court upheld a regime of
suspicionless testing of Customs employees even though it was not “im-
12796 UNITED STATES v. SCOTT
Nevada legislature has not taken the position that drug use
among pre-trial 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 com-
munity 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.9
[12] We are especially reluctant to indulge the claimed spe-
cial need here because Scott’s privacy interest in his home,
where the officers came to demand the urine sample, is at its
zenith. “[P]rivate residences are places in which the individ-
ual 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 (1984); see also
Payton v. New York, 445 U.S. 573, 589 (1980) (“The Fourth
plemented 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.
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 (quoting Von Raab, 489
U.S. at 669) (internal quotation marks omitted) and were exposed to brib-
ery attempts. Von Raab, in other words, was “[h]ardly a decision opening
broad vistas for suspicionless searches” and “must be read in its unique
context.” Id. at 321. Here there is no obvious connection between drug use
and appearance in court sufficient to obviate the need for a showing of
factual nexus.
9
The dissent does no better. See dissent at 12817. 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 12817.
 UNITED STATES v. SCOTT 12797
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 spe-
cial custodial role, see Bd. of Educ. of Indep. Sch. Dist. No.
92 v. Earls, 536 U.S. 822, 830 (2002), Customs employees,
who occupy sensitive government positions, see Von Raab,
489 U.S. at 669, or drivers and railway employees, whose
activities impose safety risks on others, see Sitz, 496 U.S. at
451; Skinner, 489 U.S. at 620, pre-trial 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 unrea-
sonable 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 expec-
tation of privacy in his home.
[13] 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. The Court wrote that “[a] State’s opera-
tion of a probation system, like its operation of a school, gov-
ernment office or prison,” presents special needs, id. at
873-74, and that the goals of probation would be disrupted by
a warrant or probable cause requirement, id. at 875-80. But
pre-trial releasees are not probationers. “Probation, like incar-
ceration, is ‘a form of criminal sanction imposed by a court
upon an offender after verdict, finding, or plea of guilty.’ ” Id.
at 874 (quoting G. Killinger et al., Probation and Parole in
the Criminal Justice System 14 (1976)). Years later, the Fer-
guson Court explained that “Griffin is properly read as limited
by the fact that probationers have a lesser expectation of pri-
vacy than the public at large.” 532 U.S. at 80 n.15. People
12798 UNITED STATES v. SCOTT
released pending trial, by contrast, have suffered no judicial
abridgment of their constitutional rights.10
[14] Because the government has failed to make the requi-
site special needs showing, the police needed probable cause
to test Scott for drugs. We thus cannot validate Scott’s search
under the special needs doctrine.
[15] 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 (2001). But in uphold-
ing 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 promo-
tion of legitimate governmental interests.” Knights’
status as a probationer subject to a search condition
informs both sides of that balance.
Id. at 118-19 (quoting Wyoming v. Houghton, 526 U.S. 295,
300 (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.
10
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 . . . travel[ing] out-
side the jurisdiction.” Dissent at 12819. These requirements, however, are
unquestionably related to the government’s special need to ensure that the
defendant not abscond. See page 12792 supra. Whether the accused may
be made to suffer other burdens that are not designed to ensure his appear-
ance in court is the very question we are now considering.
UNITED STATES v. SCOTT 12799
at 119 (quoting Griffin, 483 U.S. at 874 (quoting Morrissey
v. Brewer, 408 U.S. 471, 480 (1972))). Though the Knights
Court declined to address the consent rationale, see id. at 118;
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. The
government, for its part, has an enhanced interest in surveil-
lance and control because “ ‘the very assumption of . . . pro-
bation’ is that the probationer ‘is more likely than the ordinary
citizen to violate the law,’ ” id. at 120 (quoting Griffin, 483
U.S. at 880), and probation is also concerned with reintegrat-
ing the probationer into the community, see id. at 120-21.
The dissent’s inability to see a “constitutionally relevant”
distinction, see dissent at 12816, 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 con-
viction and accompanying term of conditional release,” id. at
834, and the “severe and fundamental disruption in the rela-
tionship between the offender and society, along with the gov-
ernment’s concomitantly greater interest in closely monitoring
and supervising conditional releasees,” occasioned by a con-
viction and imposition of release conditions, id. at 835.11
11
It is no answer to point out, as does the dissent, that “individuals con-
fined in prison pending trial have no greater privacy rights than other pris-
oners.” Dissent at 12807. The ability of prison officials to search a pretrial
detainee or his cell is justified by institutional needs such as prison secur-
ity and escape prevention. See Hudson v. Palmer, 468 U.S. 517, 529
(1984). These justifications are inapplicable when a defendant is awaiting
trial outside of a detention facility.
12800 UNITED STATES v. SCOTT
[16] 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 con-
ditional 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 is
contradicted by the presumption of innocence: While it is true
that the Supreme Court has upheld the constitutionality of
pre-trial detention on grounds of dangerousness, the Court
stressed that the statute it was upholding contained important
safeguards, including the requirements that the 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; cf. United
States v. Kills Enemy, 3 F.3d 1201, 1203 (8th Cir. 1993) (con-
trasting pre-trial 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”). Further, the government has no concern
with integrating people like Scott, who has never left the com-
munity, back into the community. The government’s interests
in surveillance and control as to a pre-trial 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.
[17] 4. The government concedes that there was no proba-
ble cause to test Scott for drugs. Therefore, Scott’s drug test
violated the Fourth Amendment. Probable cause to search
Scott’s house did not exist until the drug test came back posi-
tive. The validity of the house search, which led to both the
shotgun and Scott’s statement about the shotgun, is derivative
UNITED STATES v. SCOTT 12801
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.
BYBEE, Circuit Judge, dissenting:
The majority holds that probable cause is required for the
warrantless search of the person or home of a pretrial relea-
see. This is not only an issue of first impression in our circuit,
it is an issue of first impression in any federal court. In a case
to which no state is a party, the majority casually adopts a rule
that carries monumental implications for the pretrial proce-
dures employed by every state in our circuit, as well as the
United States.
While the question is one of first impression, we are not
without guidance. There is a body of jurisprudence — both
state and federal — examining the status of probationers,
parolees, and presentence and pretrial releasees. Based on my
reading of the cases in this arena, I cannot agree with the
majority’s new per se rule. If the “touchstone of our analysis
under the Fourth Amendment is always ‘the reasonableness
in all the circumstances of the particular governmental inva-
sion[,]’ ” then an individualized inquiry must be undertaken
to determine if the particular condition imposed is, in fact,
“reasonable.” Pennsylvania v. Mimms, 434 U.S. 106, 108-09
(1977) (quoting Terry v. Ohio, 392 U.S. 1, 19 (1968))
(emphasis added).
Accordingly, I would resolve this case by specifically
examining the facts and circumstances applicable to Scott’s
pre-trial release, then weighing the legitimate interests of the
12802 UNITED STATES v. SCOTT
state against the individual privacy interests at stake. Under
this approach — a familiar approach employed for warrant-
less searches of probationers, parolees, and presentence
releasees — I do not believe that probable cause was neces-
sary to search Scott’s person for drugs. Once obtained, the
positive drug test result gave rise to probable cause to search
Scott’s living room. I respectfully dissent.
I. FACTS AND PROCEEDINGS BELOW
The individualized inquiry that I find necessary calls for a
fuller development of the facts than that proffered by the
majority. Raymond Lee Scott was charged in Douglas
County, Nevada with one felony and two misdemeanors
related to the possession of methamphetamine and drug para-
phernalia. Two days later, Scott was released on his own
recognizance (“OR”), subject to his consent to several condi-
tions of pre-trial release.
On a printed release form, the Nevada court checked some,
but not all, of the conditions on the form. Scott agreed to sub-
mit to “random drug and alcohol testing, anytime of the day
or night by any peace officer without a warrant”; and to sub-
mit himself, his residence and his vehicle “to search and sei-
zure by any peace officer anytime day or night without a
warrant for C/S [controlled substances and] ALCOHOL.” He
also promised not to “carry or possess any firearms or danger-
ous weapons[.]” Finally, Scott’s release form provided that
“[a]ny law enforcement officer having probable cause to
believe the named defendant has violated a condition of this
release is ordered to arrest the person.”
Shortly after his release, Douglas Swalm, a probation offi-
cer working for the Department of Alternative Sentencing,
received information that Scott had in his possession a 9mm
handgun, a sawed off shotgun and paraphernalia specific to
the manufacture of methamphetamine. Based on this informa-
tion, and without obtaining a warrant, Swalm conducted a
UNITED STATES v. SCOTT 12803
“compliance visit” at Scott’s residence, accompanied by pro-
bation officer Nathan Almeida and several sheriff’s deputies
and narcotics agents. Upon their arrival, Scott invited the offi-
cers inside, where Almeida administered a urine drug test that
indicated that Scott had been using methamphetamine. Scott
was then handcuffed, seated on a couch in his living room,
told that the officers were going to search his residence, and
questioned as to whether there were any weapons in the
house. Scott denied having any firearms, but admitted to hav-
ing “several toy guns that his children used to play Cowboys
and Indians with.”
Later, Almeida asked Scott where the “toy guns” were.
Scott gestured to the television set across the room, where
Almeida spotted a nylon holster that appeared to have a gun
in it with both the grip and the barrel protruding from the hol-
ster. Almeida testified that once Scott pointed out the gun, he
could recognize it immediately. The holster contained a
sawed-off .410 gauge shotgun. The officers also found a box
of shotgun shells adjacent to the television.
Based on the results of the search, a grand jury charged
Scott with possessing a shotgun in violation of 26 U.S.C.
§§ 5841, 5861(d) and 5871. Scott moved to suppress the shot-
gun and the statements he made during the search. The gov-
ernment conceded that the search was not supported by
probable cause, but argued that Swalm reasonably suspected
that Scott was in violation of the conditions of his release.
The district court granted Scott’s motion to suppress. Bal-
ancing Scott’s privacy interests against the “legitimate inter-
ests of the state in light of the totality of the circumstances,”
the district court concluded that probable cause was needed to
search Scott’s home. United States v. Scott, CR-N-03-0122-
DWH, Order (D. Nev., Jan. 26, 2004) (citing United States v.
Knights, 534 U.S. 112, 118-19 (2001)). Finding no probable
cause, the court held the search unreasonable in violation of
12804 UNITED STATES v. SCOTT
the Fourth Amendment. The government timely appealed to
this court.
II. STANDARD FOR WARRANTLESS SEARCH OF
PRETRIAL RELEASEE
Scott contends that the district court properly determined
that probable cause, rather than reasonable suspicion, was
necessary to justify the search of his home. The government
maintains that reasonable suspicion is the only standard appli-
cable to pretrial releasees, and that such suspicion was satis-
fied in this case.
Although the question is one of first impression, we do not
write on a clean slate. Accordingly, a detailed examination of
the body of Fourth Amendment case law exploring the status
of individuals with diminished liberty interests is useful to
understanding the precise nature of the liberty interests under
scrutiny here.
A. Fourth Amendment Status of Individuals with
Diminished Liberty Interests
1. Probationers, Parolees, and Presentence and Pretrial
Releasees
Courts have distinguished the liberty interests of individu-
als on probation and parole from ordinary citizens who have
not been convicted of any crime. Warrantless searches that
would not meet constitutional standards if other persons were
the targets often meet constitutional muster when the target of
the search is a parolee or probationer. United States v.
Consuelo-Gonzalez, 521 F.2d 259, 259 (9th Cir. 1975). We
have held that warrantless searches of parolees and probation-
ers are acceptable provided that they are conducted pursuant
to the terms of the probation, United States v. Richardson,
849 F.2d 439 (9th Cir. 1988), or they are conducted to
advance the goals of the individual’s probation, rather than
UNITED STATES v. SCOTT 12805
merely for the purposes of investigation, United States v.
Ooley, 116 F.3d 370, 372 (9th Cir. 1997). Probationers and
parolees’ homes are often searched without a warrant or prob-
able cause. See, e.g., United States v. Tucker, 305 F.3d 1193
(10th Cir. 2002) (allowing search of parolee’s home based on
reasonable suspicion); Owens v. Kelley, 681 F.2d 1362 (11th
Cir. 1982) (upholding probation condition stating that defen-
dant convicted of drug possession must submit to search of
his home at any time whenever requested by a probation offi-
cer); Latta v. Fitzharris, 521 F.2d 246, 250 (9th Cir. 1975)
(“the parolee and his home are subject to search by the parole
officer when the officer reasonably believes that such search
is necessary in the performance of his duties”); People v.
Reyes, 968 P.2d 445 (Cal. 1998) (upholding search condition
as it applied to parolee); WAYNE R. LAFAVE, SEARCH AND SEI-
ZURE: A TREATISE ON THE FOURTH AMENDMENT § 10.10 (4th ed.
2004).
Similarly, courts have determined that individuals who
have been convicted of crimes but remain free on bond or OR
pending sentencing have a diminished expectation of privacy
as compared to ordinary citizens. Courts have determined that
probable cause is not necessary to search the homes of con-
victs released presentencing. In State v. Fisher, 35 P.3d 366
(Wash. 2001), the Washington Supreme Court held that
although probable cause is normally required for issuance of
a warrant, convicts released pending sentencing may be
arrested on the basis of a “reasonable grounds” standard. The
court distinguished the “due process rights of an accused
[from those of] a defendant who has already been adjudged
‘guilty[.]’ ” Id. at 375. The court further pointed out that:
Both circumstances raise different expectations of
privacy and levels of constitutional protections. An
accused’s liberty is subject to restraint through an
arrest and the jurisdiction of the courts. A convicted
and sentenced felon is subject to the jurisdiction of
the Department of Corrections. A convicted felon
12806 UNITED STATES v. SCOTT
who awaits sentencing is still subject to the court’s
jurisdiction, but yet does not possess the same con-
stitutional rights as one merely accused. . . . Accord-
ingly, [the defendant’s] rights must be analyzed not
from the status of an accused person, but from her
status as a convicted felon released on personal
recognizance and awaiting sentencing.
Id. at 375-76 (emphasis in original). Other courts have simi-
larly observed that individuals released after conviction, but
not yet on probation or parole, have a “reduced expectation of
privacy[,]” and thus, “the police needed only a reasonable
basis to conduct a warrantless search of their home.” See State
v. Anderson, 95 P.3d 635, 638 (Idaho 2004).
We have drawn this same distinction. In Portillo v. U.S.
Dist. Court for the Dist. of Ariz., 15 F.3d 819, 823-24 (9th
Cir. 1994), we held that the supervisory nature of postconvic-
tion, presentence release is a “special need” justifying drug
tests on the basis of reasonable suspicion rather than probable
cause. In balancing the defendant’s privacy interests against
the state’s supervisory interests, the court specifically consid-
ered the fact that the defendant “[had] been convicted of theft
and [was] awaiting sentencing.” Id.
A few courts have considered the Fourth Amendment status
of individuals, like Scott, who have been released pretrial on
bail or on their own recognizance. We have commented only
briefly on the status of pretrial releasees. In United States v.
Kills Enemy, 3 F.3d 1201 (9th Cir. 1993), we contrasted an
individual on pretrial release with a convicted person awaiting
sentence in that the latter “is no longer entitled to a presump-
tion of innocence or presumptively entitled to his freedom.”
Id. at 1203. And, in Cruz v. Kauai County, 279 F.3d 1064 (9th
Cir. 2002), we observed that “one who has been released on
pretrial bail does not lose his or her Fourth Amendment right
to be free of unreasonable seizures.” Id. at 1068.
 UNITED STATES v. SCOTT 12807
In contrast, individuals confined in prison pending trial
have no greater privacy rights than other prisoners. Bell v.
Wolfish, 441 U.S. 520 (1979) (treating pretrial detainees the
same as prisoners convicted of an offense); WILLIAM E. RIN-
GEL, SEARCHES AND SEIZURES, ARRESTS AND CONFESSIONS § 17:9
(2005). Thus, a search of a pretrial detainee’s cell, Soldal v.
Cook County, 506 U.S. 56, 65 (1992); Hudson v. Palmer, 468
U.S. 517 (1984), as well as the random monitoring and
recording of a pre trial detainee’s telephone conversations on
a prison telephone have not been held to violate the Fourth
Amendment. See United States v. Willoughby, 860 F.2d 15
(2d Cir. 1988).
Although pretrial releasees may not lose their Fourth
Amendment rights, until today’s decision we have not
squarely addressed whether pretrial releasees have diminished
Fourth Amendment rights. Specifically, does a search of a
pretrial releasee require probable cause? But the question has
been addressed by state courts. Each has determined that war-
rantless search conditions may be imposed on a pretrial relea-
see so long as those conditions are reasonable. See, e.g., State
v. Ullring, 741 A.2d 1065, 1069 n.3, 1073 (Me. 1999); In re
York, 892 P.2d 804 (Cal. 1995).
The leading case is In re York, where the California
Supreme Court determined that a state statute requiring com-
pliance with “reasonable conditions” on pretrial release
allowed for warrantless searches and random drug testing.
Unable to post the bail prescribed for their offenses, the peti-
tioners in York were given the choice of remaining in custody
pending trial upon the charges or obtaining OR release. To
obtain OR release, they had to agree to specified conditions,
including a requirement that they “[s]ubmit to drug [and, in
some instances, alcohol] testing” and “[p]ermit search and
seizure of his/her person, residence, and vehicle by any peace
officer without a search warrant.” Id. at 806.
Petitioners argued that the imposition of warrantless drug
testing and search conditions upon OR releasees violated the
12808 UNITED STATES v. SCOTT
Fourth Amendment. Id. The court rejected this claim for two
reasons. The court first pointed out that defendants released
on OR lack
the same reasonable expectation of privacy as that
enjoyed by persons not charged with any crime, and
by defendants who have posted reasonable bail.
Unlike persons in these latter categories, however, a
defendant who is unable to post reasonable bail has
no constitutional right to be free from confinement
prior to trial and therefore lacks the reasonable
expectation of privacy possessed by a person unfet-
tered by such confinement. Because an incarcerated
individual generally is subject to random drug test-
ing and warrantless search and seizure in the interest
of prison security, the conditions challenged in the
present case do not place greater restrictions upon an
OR releasee’s privacy rights than the releasee would
have experienced had he or she not secured OR
release. Viewed from this perspective, the chal-
lenged conditions do not require an OR releasee to
“waive” Fourth Amendment rights that he or she
would have retained had OR release been denied.
Instead, the conditions simply define the degree of
liberty that the court or magistrate, in his or her dis-
cretion, has determined to grant to the OR releasee.
Id. at 813. Second, the court stated that the conditions are not
unconstitutional because “a pretrial detainee is not required to
agree to such restrictions, but rather is subject to them only if
he or she consents to their imposition, in exchange for obtain-
ing OR release.” Id. at 814. The court reasoned that “one who
otherwise would be incarcerated prior to judgment [because
he cannot post bail] is offered the opportunity to obtain OR
release[;] he or she is not entitled to unconditional bail-free
release, but may obtain OR release only in the discretion of
the court or magistrate, and only upon those reasonable condi-
tions attached to the release.” Id. at 814. Recognizing that
UNITED STATES v. SCOTT 12809
such restrictions are not unlimited, the court pointed out that
the conditions must be “reasonable under the circumstances,”
which in turn depends on “the relationship of the condition to
the crime or crimes with which the defendant is charged and
to the defendant’s background, including his or her prior
criminal conduct.” Id. at 815 n.10. The court then held the
search and drug testing conditions reasonable under the cir-
cumstances because they “clearly relate to the prevention and
detection of further crime and thus to the safety of the public.”
Id. at 810. Accordingly, the court concluded that warrantless
searches and random drug testing did not violate petitioners’
Fourth Amendment rights.
In State v. Ullring, 741 A.2d 1065 (Me. 1999), the Supreme
Court of Maine reached the same decision, concluding that
probable cause is not required to search the home of a pretrial
releasee. In Ullring, a defendant was arrested for possessing
marijuana and other drug paraphernalia. Id. at 1066. He
posted bail and signed a bail bond requiring “him to submit
to random searches of his person, residence, and vehicle.” Id.
After a warrantless search of his home uncovered marijuana,
the defendant challenged the trial court’s denial of his motion
to suppress the evidence.
The court began by considering the objectives of the bail
system in Maine, observing that its purpose is “to ensure the
appearance of the defendant at trial and to do so without
incarceration as long as conditions can be imposed which will
fulfill that purpose and the purpose of ensuring the integrity
of the judicial process.” Id. at 1072. The court reasoned that
[b]ail conditions, such as a prohibition against pos-
session of illegal drugs and searches for illegal
drugs, help to ensure that defendants whose back-
grounds and charges indicate that substance abuse is
a significant problem will show up at court. It is rea-
sonable to expect that a defendant who maintains
sobriety is more likely to appear in court on the
12810 UNITED STATES v. SCOTT
appointed dates than a defendant who is under the
influence of drugs or alcohol.
Id. at 1072-73. The court concluded that the random search
condition was constitutional because the condition was rea-
sonable as applied to the “history and personal situation of the
defendant.” Id. at 1073.1 For support, the court appealed to the
Supreme Court’s seminal decisions in Griffin and Knights.
In Griffin, the Court upheld a Wisconsin law that permitted
a probation officer to search a probationer’s home without a
warrant as long as his supervisor approved and as long as
there were “reasonable grounds” to believe that contraband
was present. Griffin, 483 U.S. at 870-71. Based on a tip, a
probation officer searched Griffin’s home and found a fire-
arm. Griffin was then charged with being a felon in posses-
sion of a firearm. Id. at 872. The Wisconsin Supreme Court
had previously announced a per se rule that “a probation offi-
cer may, consistent with the Fourth Amendment, search a pro-
bationer’s home without a warrant, and with only ‘reasonable
grounds’ (not probable cause) to believe that contraband is
present.” Id. at 872. The Court held that it was “unnecessary
to embrace a new principle of law . . . that any search of a
probationer’s home by a probation officer satisfies the Fourth
Amendment as long as the information possessed by the offi-
cer satisfies a federal ‘reasonable grounds’ standard,” but it
1
Likewise, other courts interpreting pretrial release and bail statutes
have inquired into the defendant’s particular circumstances before uphold-
ing warrantless search and drug testing requirements. See Oliver v. United
States, 682 A.2d 186 (D.C. App. 1996) (declining to determine whether
the testing requirement may only be imposed when there is an individual-
ized determination in all cases, but finding a “clear basis” for imposing a
drug testing requirement on defendant); Steiner v. State, 763 N.E.2d 1024,
1027-28 (Ind. App. 2002) (“the trial court must make an individualized
determination that the accused is likely to use drugs while on bail before
it is reasonable to place restrictions on the individual based on that contin-
gency”). See also Harvey v. State, 751 N.E.2d 254 (Ind. App. 2001) (pre-
trial releasee who was charged with the sale of drugs could be ordered to
submit to random drug tests as condition of bail).
UNITED STATES v. SCOTT 12811
was enough to say that “this warrantless search did not violate
the Fourth Amendment.” Id. (emphasis added). The court
concluded that “the search of Griffin’s home satisfied the
demands of the Fourth Amendment because it fulfilled a “spe-
cial need[, which] make the warrant and probable-cause
requirement impracticable.” Id. (citing New Jersey v. T.L.O.,
469 U.S. 325 (1985)).
The Court reexamined the issue in Knights, and held that
a warrantless search of a probationer’s apartment was reason-
able under the Fourth Amendment where it was authorized by
a condition of his probation and supported by reasonable sus-
picion. Knights, 534 U.S. at 122. After obtaining probation for
a misdemeanor drug offense, Knights signed a condition that
he would “[s]ubmit his . . . person, property place of resi-
dence, vehicle, personal effects, to search at anytime, with or
without a search warrant, warrant of arrest or reasonable
cause by any probation officer or law enforcement officer.”
Id. at 114. While Knights was on probation, a police officer
conducted an investigatory search of his home and found
materials indicating that he participated in a conspiracy to
commit arson. Id. at 116.
Knights argued that “a warrantless search of a probationer
satisfies the Fourth Amendment only if it is . . . ‘a special
needs’ search conducted by a probation officer.” Id. at 117.
The Court rejected this rationale, again emphasizing that Grif-
fin did not decide that all warrantless searches of probationers
were reasonable within the meaning of the Fourth Amend-
ment. Id. at 117-18. Instead, the Court relied on a “general
Fourth Amendment approach of ‘examining the totality of the
circumstances,’ Ohio v. Robinette, 519 U.S. 33, 39 (1996),
with the probation search condition being a salient circum-
stance.” Knights, 534 U.S. at 118. See also United States v.
Stokes, 292 F.3d 964, 967-68 (9th Cir. 2002). This approach
consisted of “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
12812 UNITED STATES v. SCOTT
governmental interests.” Id. at 119 (citing Wyoming v. Hough-
ton, 526 U.S. 295, 300 (1999)). The probation order “clearly
expressed the search condition and Knights was unambigu-
ously informed of it.” Id. at 119. “The probation condition
thus significantly diminished Knights’ reasonable expectation
of privacy.” Id. The Court also recognized the state’s concern
in preventing a probationer from engaging in further criminal
activities. Id. at 120-21. Because the state may “justifiably
focus on probationers in a way that it does not on the ordinary
citizen,” reasonable suspicion rather than probable cause may
justify a warrantless search. Id. at 121.
2. Totality of the Circumstances
Although the majority cites Griffin and Knights, it does not
consider the various factors that are relevant in determining
whether the search of Scott’s home and person were reason-
able. In my view, a balancing approach that incorporates
those factors is appropriate here. Toward this end, I consider
the state’s interests, which include the purposes of the OR
release and bail system in Nevada, state law standards relating
to eligibility for pretrial release, and specific concerns appli-
cable to Scott’s pre-trial release, taking into account the crime
with which he was charged and the conditions to which he
consented.
The imposition of pretrial search conditions must be
adapted to the pretrial releasee; the conditions should be
related to a public purpose such as rehabilitating the offender
or protecting the public. See, e.g., Owens, 681 F.2d at 1366-
67; Consuelo-Gonzales, 521 F.2d at 263. Even as I question
the “categorical no” approach adopted by the majority, I
would not endeavor to create a one-size-fits-all standard for
approving all searches of pretrial releasees; this approach was
rejected by the Court in Griffin with respect to probationers
and it is equally ill-suited to pretrial releasees.
Finally, although the balancing test offered by the Court in
Knights seems to invite a series of finely tailored standards,
UNITED STATES v. SCOTT 12813
lower federal courts are not free to insert new standards into
the gap between reasonable suspicion and probable cause.
United States v. Montoya de Hernandez, 473 U.S. 531, 540-
41 (1985) (rejecting an intermediate “clear indication” stan-
dard as incompatible with the Fourth Amendment’s “reason-
ableness” approach). Thus, recognizing “reasonableness” as
the hallmark of the Fourth Amendment, I apply the standards
announced in Knights, balancing Scott’s privacy interests
against the legitimate interests of the state in light of the total-
ity of the circumstances. Knights, 534 U.S. at 118-19.
B. Fourth Amendment Balancing
In accord with the Court’s analysis in Griffin, I turn to an
examination of the standards applied by Nevada courts in
releasing Scott on his own recognizance.2 While “the validity
of a search conducted by state law enforcement officers is
ultimately a question of federal law”, federal courts “must
look to state law to determine the validity of the underlying
[release] condition itself, and may consider state precedent for
its persuasive value[.]” Ooley, 116 F.3d at 372 (internal cita-
tions and quotations omitted). Before releasing a person with-
out bail,3 a Nevada “court may impose such reasonable
conditions on the person as it deems necessary to protect the
health, safety and welfare of the community to ensure that the
person will appear at all times and places ordered by the court
. . .” NEV. REV. STAT. § 178.484(8).4 Although the Nevada
2
While Nevada courts for many years have applied a “reasonable suspi-
cion” standard to probationary searches, Allan v. State, 746 P.2d 138
(1987); Seim v. State, 590 P.2d 1152 (1979) (“To justify a warrantless
search by a parole or probation officer, the officer must have reasonable
grounds to believe that a violation of the parole or probation has
occurred.”), it is not clear if Nevada intends to apply that same standard
to searches of pretrial releasees, although it seems likely.
3
Under Nevada law, any person “arrested for an offense other than mur-
der of the first degree must be admitted to bail.” NEV. REV. STAT.
§ 178.484(1).
4
Nevada’s standard is quite similar to the federal standard for release of
a defendant pending trial. See 18 U.S.C. § 3142(c)(B). See also Griffin,
483 U.S. at 875.
12814 UNITED STATES v. SCOTT
statutes do not specifically mention warrantless searches or
random drug testing, the list is expressly nonexclusive. Id.
1. The State’s Interests
a. Protecting the public. The majority rejects the state’s
interest in protecting the public as a “quintessential general
law enforcement purpose [which is] the exact opposite of a
special need,” and argues that the presumption of innocence
insulates the pretrial releasee from the claim that he is “more
likely to commit crimes than other members of society.” Maj.
op. at 12794, 12800. First, the state’s interest is not so easily
dismissed by referring to the state’s general duty to protect the
public or the presumption of innocence. The Court has
rejected a similar argument in Knights that warrantless
searches of probationers must serve a “special need,” 534
U.S. at 117, and not a more general purpose. Moreover, while
protecting its citizens is the first duty of government, see
Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803),
Nevada’s concern for the safety of the public is not “general
law enforcement” when it is manifested in pretrial conditions
tailored to this defendant.
Second, the accused enjoys the presumption of innocence
as a trial right; an accused does not enjoy the same presump-
tion with respect to ordinary civil rights of citizens, such as
freedom of movement. See, e.g., U.S. CONST. amend. VIII
(“Excessive bail shall not be required”; emphasis added).5
5
I do not see the relevance of the majority’s assertion that under the
Excessive Bail Clause of the Eighth Amendment, “[t]here may . . . be
cases where the risk of flight is so slight that any amount of bail is exces-
sive; release on one’s own recognizance would then be constitutionally
required, which could further limit the government’s discretion to fashion
the conditions of release.” Maj. op. at 12787 n.6. I do not read the majority
opinion to hold that Scott is within the class of persons for whom “any
amount of bail” (or any pretrial conditions) would be excessive under the
Eighth Amendment. See United States v. Smith, 444 F.2d 61 (9th Cir.
1971) (holding that pretrial conditions of release under 18 U.S.C. § 3142
do not violate the Eighth Amendment). The footnote is both dicta and,
under the approach I have advocated, irrelevant.
UNITED STATES v. SCOTT 12815
Both courts and Congress have implicitly rejected the majori-
ty’s argument by treating persons indicted for crimes differ-
ently than ordinary citizens. In Wolfish, the Supreme Court
rejected a similar argument, concluding that “[t]he presump-
tion of innocence is a doctrine that allocates the burden of
proof in criminal trials . . . [b]ut it has no application to a
determination of the rights of a pretrial detainee during con-
finement before his trial has even begun.” 441 U.S. at 533.
Likewise, in Speight v. United States, 569 A.2d 124 (D.C. Ct.
App. 1989), the court held that a local statute that punished
crimes committed while on pretrial release greater than those
committed by ordinary citizens did not violate the presump-
tion of innocence. See also 18 U.S.C. § 922(n) (specifically
punishing indicted persons who receive or ship firearms in
interstate commerce); United States v. Craven, 478 F.2d 1329,
1340 (6th Cir. 1973) (rejecting claims that the statutory classi-
fication punishing indicted persons is irrational on the ground
that, in treating indicted persons differently, it “adversely
affect[s] the presumption of innocence[ ]”; stating that the
classification is valid since Congress’ conclusion that fact of
felony indictment is “so often indicative of a propensity for
violence” is “eminently reasonable”); United States v. Brown,
484 F.2d 418, 424 (5th Cir. 1973) (same); United States v.
Quiroz, 449 F.2d 583, 585 (9th Cir. 1971) (same). Cf. 18
U.S.C. § 3577 (approving of consideration of prior arrests in
imposing penalties by providing that “[n]o limitation shall be
placed on the information concerning the background, charac-
ter, and conduct of a person convicted of an offense which a
court of the United States may receive and consider for the
purpose of imposing an appropriate penalty”). Individuals on
pretrial release may be treated differently than ordinary citi-
zens without violating the presumption of innocence.
The majority’s lack of consideration for the state’s
expressed interests is especially irresponsible in cases involv-
ing “drugs or illegal weapons” where authorities supervising
the convict “must be able to act based on a lesser degree of
certainty than the Fourth Amendment would otherwise
12816 UNITED STATES v. SCOTT
require in order to intervene before [the person] does damage
to himself or society.” Griffin, 483 U.S. at 879; see Kills
Enemy, 3 F.3d at 1203; State v. Anderson, 95 P.3d 635, 638
(Idaho 2004) (“Because [Defendant’s] convictions were for
drug crimes, a heightened need of supervision was necessary
to protect them and society”; thus, “the [Defendant’s] convic-
tions and past drug history, combined with the rumors and
reports . . . of . . . police and [their] neighbor are sufficient to
establish reasonable grounds for the search.”).
Scott’s status as a pre-trial releasee distinguishes him from
the probationer considered in Griffin, but the distinction is not
constitutionally relevant. The Court’s analysis in Griffin and
Knights should apply equally to the facts of this case. Scott
was arrested for felony drug possession and the probation
officers searched his home based on reasonable suspicion that
he possessed firearms and drug paraphernalia. Perhaps the
state has a lesser interest where conviction has not yet been
established, but surely the state retained some interest in inter-
vening before Scott did “damage to himself or society.” Grif-
fin, 483 U.S. at 879.
Moreover, “[t]he government’s interest in preventing crime
by arrestees is both legitimate and compelling.” United States
v. Salerno, 481 U.S. 739, 749 (1987). See also Speight, 569
A.2d at 126-27 (discussing Congress’s concern with the
increase in crimes committed during pretrial release). By fail-
ing to recognize these interests, the majority grossly misrepre-
sents the government’s interest in protecting the public
through supervising individuals on pretrial release.
b. Securing attendance at trial. With regard to Nevada’s
second articulated interest, ensuring that the defendant
appears in court, the majority hypothesizes that the state is
concerned that the defendant “may use drugs . . . and be so
overcome by the experience . . . that he misses his court date”
or “may be too mentally impaired to participate meaningfully
in the proceedings.” Maj. op. at 12795. The majority writes
UNITED STATES v. SCOTT 12817
this off as “highly unlikely” and asserts that the “government
has produced nothing to suggest these are common enough
problems to justify intruding on the privacy rights of every
single defendant out on pre-trial release” and must do so “em-
pirically.” Id.
Thus, without explanation, the majority requires that state
governments empirically prove that drug use is preventing
individuals from appearing in court before they can require
consent to drug testing in exchange for pretrial release. See id.
There are other reasons a state might link drug testing with
attendance at trial. Even if the state was not concerned with
physical attendance, the state has a strong interest in preserv-
ing its judicial resources. Drug testing helps ensure that the
accused is physically and mentally prepared for trial, so that
there are no delays or claims that the defendant was unable to
understand the proceedings or participate in his defense.
Even assuming that drug use does not generally affect a
pretrial releasee’s likelihood of appearing in court, the major-
ity ignores the other state interests underlying the conditions.
Although random drug tests “cannot be said to relate directly
to the likelihood that a defendant will comply with his or her
duty to attend subsequent court hearings,” the conditions
“clearly relate to the prevention and detection of further crime
and thus to the safety of the public.” In re York, 892 P.2d at
810, 812. Requiring states to make an empirical showing
before imposing a drug testing condition ties the hands of
states in preventing crimes and protecting the public. More-
over, today’s holding carries monumental implications for the
numerous state governments that regularly require, where
drug offenses are concerned, submission to drug testing in
exchange for pretrial release.
2. Scott’s Interests
As to Scott’s interest, the searches were conducted at
Scott’s home, a location specially protected by the Fourth
12818 UNITED STATES v. SCOTT
Amendment. See generally Kyllo v. United States, 533 U.S.
27 (2001). No criminal judgment or sanction had been
imposed on Scott at the time of the search. Further, at the time
of arrest he was not carrying any dangerous weapons.
Although all of these factors favor privacy protection, Scott’s
initial arrest was for felony possession of methamphetamine
and two misdemeanors — possession of drugs and drug para-
phernalia. Such drugs are frequently used or stored in the
home. Thus, Scott’s reasonable expectation of privacy may be
somewhat greater than that of a probationer, parolee, or pre-
sentence releasee, but it is less than that of an “ordinary citi-
zen.” Moreover, Scott’s reasonable expectation of privacy is
diminished somewhat by his agreement to place himself under
the supervision of the Department of Alternative Sentencing
and waive the warrant requirement in exchange for being
released on OR. The search condition itself, a “salient circum-
stance” in the Fourth Amendment balance, Knights, 534 U.S.
at 118, allowed warrantless searches for controlled substances
and alcohol, and implicitly waived the probable cause require-
ment by imposing “random” drug testing. The consent form
“clearly expressed the search condition” and Scott was “un-
ambiguously informed of it.” Id. at 119. The conditions on the
form, to submit to random drug testing and warrantless
searches of his home for alcohol and controlled substances,
were also related to the felony and misdemeanor drug crimes
with which he was charged. “The [release] condition thus sig-
nificantly diminished [Scott’s] reasonable expectation of pri-
vacy.” Id.
In my view, the Knights balance tips more favorably in the
direction of the state’s legitimate interests as it concerns the
random drug testing condition. Scott knowingly consented to
random drug testing in exchange for release from prison
pending trial. I would hold that the state did not violate the
Constitution by requiring Scott to submit to a random drug
test based on reasonable suspicion. Once the state adminis-
tered the drug test, and it came back positive, the officers had
probable cause to arrest Scott, search his living room, and
UNITED STATES v. SCOTT 12819
question him as to the presence of any weapons on the prem-
ises. Thus, I would hold that the guns were obtained during
a lawful search. I find the Court’s decisions in Griffin and
Knights instructive in this regard.
The majority attempts to distinguish Griffin by stating that
“pre-trial releasees are not probationers,” and “[p]eople
released pending trial, by contrast, have suffered no judicial
abridgment of their constitutional rights.” Maj. op. at 12797-
98. While technically I agree that pretrial releasees have not
had a judicial abridgment of their constitutional rights, they
have a lesser expectation of privacy than an ordinary citizen.
A pretrial releasee suffers great burdens and is “scarcely at
liberty[.]” Albright v. Oliver, 510 U.S. 266, 279 (1994) (Gins-
burg, J., concurring). A person facing pending charges and
released on their own recognizance is “required to appear in
court at the state’s command[,] . . . is often subject, as in this
case, to the condition that he seek formal permission from the
court (at significant expense) before exercising what would
otherwise be his unquestioned right to travel outside the juris-
diction.” Id. at 278. A defendant who could not post bail or
obtain release on OR faces a much larger deprivation of lib-
erty by being confined pending trial. “Pretrial confinement
may imperil the suspect’s job, interrupt his source of income,
and impair his family relationships.” Gerstein v. Pugh, 420
U.S. 103, 114 (1975). Detention may limit a defendant’s prep-
aration for trial by limiting his access to his attorney and
potential witnesses. Stack v. Boyle, 342 U.S. 1, 4 (1951). It
may also “result in permanent stigma and loss of reputation
to the defendant.” United States v. Motamedi, 767 F.2d 1403,
1414 (9th Cir. 1985) (Boochever, J., concurring and dissent-
ing in part). As Judge Boochever explained
The magnitude of these concerns is increased by the
fact that the injuries consequent upon pretrial con-
finement may not be reparable upon a subsequent
acquittal. Society has no mechanism to recompense
an individual for income lost or damages to a career
12820 UNITED STATES v. SCOTT
due to pretrial confinement. Nor do we compensate
the individual and his family for their mental suffer-
ing and loss of reputation due to pretrial incarcera-
tion.
Id. Further, “his employment prospects may be diminished
severely, he may suffer reputational harm, and he will experi-
ence the financial and emotional strain of preparing a
defense.” Id. Moreover, a defendant released on his own
recognizance, even though he has not been charged with a
crime, is considered to be “in custody” for some purposes.
Hensley v. Municipal Ct., 411 U.S. 345 (1973) (pretrial relea-
see is considered in custody for habeas purposes); In re Floyd,
413 F. Supp. 574, 576 (D. Nev. 1976) (recognizing that a
defendant released on OR, but who has not been convicted
and sentenced, is also considered to be “in custody”).
Importantly, the common law seems to have regarded the
difference between pretrial incarceration, bail, and other ways
to secure a defendant’s court attendance as different “methods
of retaining control over a defendant’s person[,] which was in
custody.” Albright, 510 U.S. at 277-78 (Ginsburg, J., concur-
ring) (citing 2 M. HALE, PLEAS OF THE CROWN 124 (“he that is
bailed, is in supposition of law still in custody, and the parties
that take him to bail are in law his keepers”); 4 W. BLACK-
STONE, COMMENTARIES 297 (bail in both civil and criminal
cases is “a delivery or bailment, of a person to his sureties,
. . . he being supposed to continue in their friendly custody,
instead of going to gaol [jail].”)). Thus, those complying with
release conditions are able to forgo a deprivation of liberty
much greater than any release condition.
This is not to say that all release conditions should be
deemed constitutional. In fact, there have been several
instances where courts have found release conditions too con-
strictive on liberty. See Evans v. Ball, 168 F.3d 856, 860-61
(5th Cir. 1999) (holding that a combination of pretrial release
restrictions, including restriction on the amount of interstate
UNITED STATES v. SCOTT 12821
travel, violate the Fourth Amendment), overruled on other
grounds by Castellano v. Fragozo, 352 F.3d 939 (5th Cir.
2003); Gallo v. City of Phila., 161 F.3d 217, 224-25 (3d Cir.
1998) (same); Murphy v. Lynn, 118 F.3d 938, 942, 946 (2d
Cir. 1997) (same)); but see Karam v. City of Burbank, 352
F.3d 1188 (9th Cir. 2003) (holding that the conditions of
defendant’s “OR release—requiring that she obtain permis-
sion of the court before leaving the state and that she make
court appearances—[did not] amount[ ] to a seizure under the
Fourth Amendment[ ]”). However, individuals charged with a
crime and released before trial are not like ordinary citizens.
While “[p]retrial releasees are not probationers,” they are sep-
arated from confinement only by a few hundred dollars or a
signature on a consent form. Maj. op. at 12797.
This last point requires closer examination of the implica-
tions of the majority’s ruling. The majority treats Scott’s
assent to the conditions of his OR release as a question of
whether the Fourth Amendment permits Scott to waive his
Fourth Amendment rights. This seems quite backwards to me.6
It seems to me that at the time Scott agreed to these conditions
in exchange for release on OR he was in a much better posi-
tion than we are to weigh the reasonableness of the govern-
6
The majority describes my use of the term “waiver” as “mistaken[ ]”
and says “[t]he question here is whether the government can induce Scott
to waive his Fourth Amendment rights.” Maj. op. at 12786 n.5. The major-
ity admits that the “government is under no duty to grant” Scott pretrial
release. Id. at 12787. I do not see anything unconstitutional about “induc-
ing” Scott to give up one freedom — his immunity from certain searches
and seizures — in exchange for the freedom to walk the streets and sleep
at home. Scott has just as surely been “induced” by the alternative: that
the government will require bail or even jail him pending trial.
In one sense, the government has no more “induced” Scott to forgo his
Fourth Amendment rights in exchange for his liberty, than Scott has “in-
duced” the government to forgo its right to require bail in exchange for the
right to search him at his home. The question is not inducement or not —
although, ultimately, that is the way the majority treats the question — but
whether the inducement is reasonable.
12822 UNITED STATES v. SCOTT
ment’s proposed course of conduct. Unless we can find some
irreducible right or moral imperative within the Fourth
Amendment, one that absolutely forbids pretrial detainees
from agreeing to any conditions before they are released, the
majority’s approach begs the question.
There are, of course, constitutionally irreducible rights—
the right not to be a slave being the prime example. The Court
has also suggested that government may not condition to
receipt of government largesse, license, or privilege on the
waiver of certain rights guaranteed by the Constitution, at
least where the condition bears no plausible relationship to the
receipt of the benefit. The receipt of a tax exemption cannot
be conditioned, for example, on an express waiver of the priv-
ilege of criticizing the government. See, e.g., Speiser v. Ran-
dall, 357 U.S. 513, 518-19 (1958) (“To deny [a tax]
exemption to claimants who engage in certain forms of
speech is in effect to penalize them for such speech [and] nec-
essarily will have the effect of coercing the claimants to
refrain from the proscribed speech.”). But no one has ever
suggested that the rights of security and privacy in our “per-
sons, houses, papers, and effects” cannot be infringed by stat-
ute or waived by agreement, at least when the infringement is
related in some rational way to changes in the individual’s
legal status. Griffin and Knights are conclusive evidence to
the contrary. See also Wyman v. James, 400 U.S. 309, 326
(1971) (holding that a state that conditioned payments under
its Aid to Families with Dependent Children (AFDC) program
on the “recipient’s submission to warrantless searches of her
home” did not unconstitutionally burden Fourth Amendment
freedoms). I am not suggesting that there are no limits to what
the government may demand from an OR releasee; I would
hold in this case that the conditions Nevada exacted are not
unreasonable.
The majority opinion may free Scott from the consequences
of the state’s discovery of a sawed-off shotgun in his home,
but in the end today’s opinion is not a liberty-enhancing deci-
UNITED STATES v. SCOTT 12823
sion. As the majority acknowledges, “many pre-trial detainees
willingly consent to such conditions, preferring to give up
some rights in order to sleep in their own beds while awaiting
trial.” Maj. op. at 12787. Today’s decision strikes down
Nevada’s practice of offering pretrial detainees the option of
being released on OR and sleeping in their own beds in
exchange for agreeing to a limited number of conditions that
the state believes will protect the public and secure the atten-
dance of the accused at trial. But the implications of the
majority’s new per se rule could hardly be more severe or far-
reaching.
Every state in this circuit has a rule, similar to Nevada’s,
granting state judges broad discretion in the fashioning of pre-
trial release conditions. See, e.g., CAL. PENAL CODE
§ 1318(a)(2) (requiring a “defendant’s promise to obey all
reasonable conditions imposed by the court or magistrate”
before he can be released on his own recognizance); OR. REV.
STAT. § 135.260(1)(d) (“Conditional release may include one
or more of the following conditions . . . [a]ny other reasonable
restriction designed to assure the defendant’s appearance.”);
NEV. REV. STAT. § 178.484(8) (permitting trial courts to “im-
pose such reasonable conditions on the person as it deems
necessary to protect the health, safety and welfare of the com-
munity to ensure that the person will appear at all times and
places ordered by the court . . .”); ARIZ. RULES CRIM. PROC.,
Rule 7.3(b)(4) (providing for pre-trial release subject to
“[a]ny other condition . . . which the court deems reasonably
necessary”); WASH. CR. R. 3.2(b)(7) (empowering state courts
to “[i]mpose any condition other than detention deemed rea-
sonably necessary to assure appearance as required”); HAW.
REV. STAT. § 804-7.1(9) (permitting court to require, as a con-
dition of OR release, that the defendant “satisfy any other
condition reasonably necessary to assure the appearance of
the person as required and to assure the safety of any other
person or community”); ALASKA STAT. § 12.30.020(b)(7)-(c)
(permitting courts to “impose any other condition considered
reasonably necessary to assure the defendant’s appearance as
12824 UNITED STATES v. SCOTT
required and the safety of the alleged victim, other persons, or
the community”, and setting forth eleven factors the judge
should take into account when fashioning conditions); MON-
TANA STAT. 46-9-108(1) (“The court may impose any condi-
tion that will reasonably ensure the appearance of the defen-
dant as required or that will ensure the safety of any person
or the community . . . .”); IDAHO CRIM. RULES, Rule 46(c)
(allowing court to “impose such reasonable terms, conditions
and prohibitions as the court finds necessary in the exercise
of its discretion”). Moreover, at least one other state in this
circuit has interpreted the rule to permit random drug testing
and warrantless search conditions. See In re York, 892 P.2d at
815 (upholding a California pre-trial condition requiring the
defendant to submit to random drug testing and warrantless
searches and seizures). See also Ullring, 741 A.2d at 1073
(concluding that a random search condition employed by trial
courts in Maine did not offend the Constitution).
The United States likewise employs a rule similar to
Nevada’s, granting broad discretion where pre-trial releasees
are concerned. See 18 U.S.C. § 3142(c)(1)(B)(xiv) (providing
for pretrial release subject to “any other condition that is rea-
sonably necessary to assure the appearance of the person as
required and to assure the safety of any other person and the
community”). Importantly, the standard pre-trial release form
used by federal courts across the nation requires, as a condi-
tion of release, the defendant to “submit to any method of
testing required by the pretrial services office or the supervis-
ing officer for determining whether the defendant is using a
prohibited substance.” 7 Fed. Proc. Forms § 20:110, Order
Setting Conditions of Release, Additional Conditions of
Release (AO 199B). The form continues: “Such methods may
be used with random frequency and include urine testing, the
wearing of a sweat patch, a remote alcohol testing system,
and/or any form of prohibited substance screening or testing.”
Id. (emphasis added). The majority’s decision invalidates the
United States government’s pre-trial release condition unless
UNITED STATES v. SCOTT 12825
federal officers can first demonstrate probable cause to sup-
port the drug test.
We cannot predict with certainty how the states or the
United States will respond to the majority’s new per se rule
prohibiting warrantless search conditions and random drug
testing without probable cause. It is not hard to imagine that
some jurisdictions will decide that releasing persons accused
of crimes on OR without such conditions will not serve the
public interest. They may respond by either insisting on bail
or simply holding the accused pending trial. Those pre-trial
detainees might well have “preferr[ed] to give up some rights
in order to sleep in their own beds while awaiting trial,” maj.
op. at 12787, but, under the majority’s decision, their Fourth
Amendment rights will be secure while they rest in the county
jail.7
I am confident that, working within the framework of Grif-
fin and Knights, there is little danger that we will “[g]iv[e] the
government free rein to grant conditional benefits . . . [and]
abuse its power by attaching strings strategically striking lop-
sided deals.” Maj. op. at 12788. Nothing that I have said here
would sanction such actions, and I do not see that Nevada has
done so here.
7
Justice Scalia has colorfully illustrated why it is “not true” that “a con-
stitutional right is by its nature so much more important to the claimant
than a statutory right”:
An individual’s contention that the Government has reneged
upon a $100,000 debt owing under a contract is much more
important to him—both financially and, I suspect, in the sense of
injustice that he feels—than the same individual’s claim that a
particular federal licensing provision requiring a $100 license
denies him equal protection of the laws . . . . A citizen would
much rather have his statutory entitlement correctly acknowl-
edged after a constitutionally inadequate hearing, than have it
incorrectly denied after a proceeding that fulfills all the require-
ments of the Due Process Clause.
Webster v. Doe, 486 U.S. 592, 618 (1988) (Scalia, J., dissenting).
12826 UNITED STATES v. SCOTT
III. CONCLUSION
I would hold that cases involving pretrial releasees are sub-
ject to a balancing test that weighs the legitimate interests of
the state against the individual privacy interests at stake in
light of the unique circumstances and facts alleged. Using this
approach, I conclude that the search and seizure conducted
here were valid; the officers needed only reasonable suspicion
to administer the drug test and, once administered, they had
probable cause to arrest Scott and search his living room for
weapons.
I respectfully dissent.