United States v. Scott ( 2006 )

Volume 1 of 2
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 04-10090
Plaintiff-Appellant, D.C. No.
v.
 CR-03-00122-DWH
RAYMOND LEE SCOTT, ORDER AND
Defendant-Appellee. AMENDED
 OPINION
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
Amended June 9, 2006
Before: Alex Kozinski, William A. Fletcher and
Jay S. Bybee, Circuit Judges.
Opinion by Judge Kozinski;
Dissent by Judge Bybee;
Dissent from Denial of Rehearing En Banc
by Judge Callahan
6443
UNITED STATES v. SCOTT 6447
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.
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reported at 424 F.3d 888, is withdrawn, and is replaced by the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 peti-
tion 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 cir-
cuit. Somewhat surprisingly, it is an issue of first impression
in any federal circuit and the vast majority of state courts.1 A
1
The dissent points to only two states whose supreme courts have
addressed this issue: Maine and California. See dissent at 6472 (citing
State v. Ullring, 741 A.2d 1065 (Me. 1999); In re York, 892 P.2d 804
6448 UNITED STATES v. SCOTT
lack of binding precedent does not, of course, excuse us from
deciding a difficult issue when, as here, it is squarely pre-
sented.
Facts
Scott was arrested in Nevada on state charges of drug pos-
session 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 evi-
dence 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 pre-trial release conditions.”
Based on an informant’s tip, state officers went to Scott’s
(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.
UNITED STATES v. SCOTT 6449
house and administered a urine test. The government con-
cedes the tip did not establish probable cause. When Scott
tested positive for methamphetamine,2 the officers arrested
him and searched his house. The search ultimately turned up
a shotgun.
A federal grand jury indicted Scott for unlawfully possess-
ing an unregistered shotgun.3 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.4
2
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.
3
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).
4
The dissent mistakenly describes this as “a question of whether the
Fourth Amendment permits Scott to waive his Fourth Amendment rights.”
Dissent at 6486. 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.
6450 UNITED STATES v. SCOTT
[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.5 Government is a monopoly
5
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 6488. Indeed, the fact that
a state may be able to deny bail to someone—or indeed everyone—who
UNITED STATES v. SCOTT 6451
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.
6452 UNITED STATES v. SCOTT
[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
UNITED STATES v. SCOTT 6453
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.
6454 UNITED STATES v. SCOTT
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 page 6462 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 6460-64 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 pur-
suant to the condition included in the terms of probation must
necessarily meet the Fourth Amendment’s standard of reason-
ableness.”).
[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,
881-82 (1975). But we relax these requirements “when ‘spe-
UNITED STATES v. SCOTT 6455
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 United States 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
designed to secure the border, see United States v. Martinez-
6456 UNITED STATES v. SCOTT
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-
UNITED STATES v. SCOTT 6457
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 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 arrestees is
both legitimate and compelling,’ ” dissent at 6481 (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.”).6 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. But the connection between the
object of the test (drug use) and the harm to be avoided (non-
6
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.
6458 UNITED STATES v. SCOTT
appearance in court) is tenuous. One might imagine that a
defendant who uses drugs while on pre-trial 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 con-
ceivable justifications, but the government has produced noth-
ing to suggest these problems are common enough to justify
intruding on the privacy rights of every single defendant out
on pre-trial 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 appear-
ing at trial.
Drug use during pre-trial release may also result in a defen-
dant’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. “A demonstrated problem” of drug use leading
to nonappearance “would shore up” the government’s asser-
tion of a special need. See id.7 As far as we can tell, the
7
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-
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
UNITED STATES v. SCOTT 6459
Nevada legislature has not taken the categorical 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.8 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.9
[11] 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
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.
8
This is different from the federal bail system. Unlike the Nevada legis-
lature, Congress seems to have recognized some connection between drug
use and nonappearance at trial. See 18 U.S.C. §§ 3142(c)(1)(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.
9
The dissent does no better. See dissent at 6482. 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 6483.
6460 UNITED STATES v. SCOTT
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
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.10
[12] 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 incarcera-
tion, is ‘a form of criminal sanction imposed by a court upon
an offender after verdict, finding, or plea of guilty.’ ” Id. at
10
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.
UNITED STATES v. SCOTT 6461
874 (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. People released
pending trial, by contrast, have suffered no judicial abridg-
ment of their constitutional rights.11
[13] 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.12 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. 6458 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.13
11
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 6484. These requirements, however, are
unquestionably related to the government’s special need to ensure that the
defendant not abscond. See page 6455 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.
12
We do not hold that the government can never justify drug-testing as
a condition of pre-trial 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 precedential, see 9th Cir. R. 36-3, and are, in any event, superseded
by this amended opinion.
13
We do not decide what types of individualized and/or legislative find-
ings might satisfy a special needs showing; whatever is required, the gov-
ernment did not accomplish it in this case.
6462 UNITED STATES v. SCOTT
We thus cannot validate Scott’s search under the special
needs doctrine.
[14] 3. Nor was the search reasonable under a more gen-
eral “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.
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.
UNITED STATES v. SCOTT 6463
The dissent’s inability to see a “constitutionally relevant”
distinction, see dissent at 6481, 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 835.14
[15] 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,
without an individualized determination to that effect,15 is
14
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 6471. 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.
15
Prior convictions and other reliably determined facts relating to dan-
gerousness 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 deter-
mination of dangerousness.
6464 UNITED STATES v. SCOTT
contradicted by the presumption of innocence: That an indi-
vidual is charged with a crime cannot, as a constitutional mat-
ter, 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 inno-
cent pending trial, and innocence can only raise an inference
of innocence, not of guilt.
[16] While the Supreme Court has upheld the constitution-
ality of pre-trial detention on grounds of dangerousness, the
Court stressed that the statute it was upholding contained
important safeguards, including the requirements that defen-
dant be accused of a particularly serious crime and that dan-
gerousness 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) (contrasting pre-trial releasees with convicted persons
awaiting sentence, and noting that the latter are “no longer
entitled to a presumption of innocence or presumptively enti-
tled 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 pre-trial criminal
defendant could be detained: “In a full-blown adversary hear-
ing, the Government must convince a neutral decisionmaker
by clear and convincing evidence that no conditions of release
can reasonably assure the safety of the community or any per-
son.” Salerno, 481 U.S. at 750. Thus, the Supreme Court
upheld the constitutionality of a bail system where pre-trial
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 trig-
gered the ability to hold a hearing during which such a deter-
mination 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
UNITED STATES v. SCOTT 6465
bail, the conditions must be justified by a showing that defen-
dant 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 suffi-
cient 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 surveil-
lance and control as to a pre-trial releasee are thus considera-
bly less than in the case of a probationer. A search of Scott
or his house on anything less than probable cause is not sup-
ported by the totality of the circumstances in this case.
[17] 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 vio-
lated 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.
BYBEE, Circuit Judge, dissenting:
The majority holds that probable cause is required for the
warrantless search of the person or home of a pretrial releasee
even though the releasee agreed to the search as a condition
6466 UNITED STATES v. SCOTT
of his pretrial release. The majority reasons that, for Fourth
Amendment purposes, we cannot distinguish between persons
charged with a crime and those who are not. As the majority
writes, “[t]hat 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.” Maj. op. at 6464. That conclusion is
contrary to history, practice and commonsense; it carries
monumental implications for the pretrial procedures
employed by every state in our circuit, as well as the United
States.
This is not only an issue of first impression in our circuit,
it is an issue of first impression in any federal court. While the
question is one of first impression, we are not without guid-
ance. There is a body of jurisprudence — both state and fed-
eral — examining the status of probationers, parolees, and
presentence and pretrial releasees. Based on my reading of the
cases, 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 invasion[,]’ ” then an individualized
inquiry must be undertaken to determine if the particular con-
dition 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
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.
UNITED STATES v. SCOTT 6467
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.”1
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
“compliance visit” at Scott’s residence, accompanied by pro-
bation officer Nathan Almeida and several sheriff’s deputies
1
The Nevada court tailored Scott’s bail conditions. The OR form is pre-
printed with twelve conditions, each one having a box in front of it that
may be checked. The court checked eight of the twelve boxes, making a
hand-written notation on one limiting warrantless searches of Scott, his
residence or vehicle to searches for controlled substances and alcohol.
6468 UNITED STATES v. SCOTT
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
the Fourth Amendment. The government timely appealed to
this court.
UNITED STATES v. SCOTT 6469
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
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-
6470 UNITED STATES v. SCOTT
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
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-
UNITED STATES v. SCOTT 6471
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.
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
6472 UNITED STATES v. SCOTT
same as prisoners convicted of an offense); WILLIAM E.
RINGEL, SEARCHES AND SEIZURES, ARRESTS AND CONFESSIONS
§ 17:9 (2005). Thus, a search of a pretrial detainee’s cell, Sol-
dal v. Cook County, 506 U.S. 56, 65 (1992); Hudson v.
Palmer, 468 U.S. 517 (1984), as well as the random monitor-
ing and recording of a pre-trial detainee’s telephone conversa-
tions 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
Fourth Amendment. Id. The court rejected this claim for two
UNITED STATES v. SCOTT 6473
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
such restrictions are not unlimited, the court pointed out that
6474 UNITED STATES v. SCOTT
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 pur-
pose 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
appointed dates than a defendant who is under the
influence of drugs or alcohol.
UNITED STATES v. SCOTT 6475
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 1073.2 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
was enough to say that “this warrantless search did not violate
the Fourth Amendment.” Id. (emphasis added). The court
2
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).
6476 UNITED STATES v. SCOTT
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
governmental interests.” Id. at 119 (citing Wyoming v. Hough-
ton, 526 U.S. 295, 300 (1999)). The probation order “clearly
UNITED STATES v. SCOTT 6477
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,
lower federal courts are not free to insert new standards into
6478 UNITED STATES v. SCOTT
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.3 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,4 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).5 Although the Nevada
3
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.
4
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).
5
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.
UNITED STATES v. SCOTT 6479
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 the public.”
Maj. op. at 6457, 6463. First, the state’s interest is not so eas-
ily 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).6
6
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 6450 n.5. 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.
6480 UNITED STATES v. SCOTT
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’s conclusion that the fact
of a 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 limita-
tion shall be placed on the information concerning the back-
ground, character, 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 citizens without violating the presumption of inno-
cence.
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
UNITED STATES v. SCOTT 6481
certainty than the Fourth Amendment would otherwise
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). The
majority acknowledges that protecting the community is a
compelling interest, but dismisses it as a rationale because
“crime prevention is a quintessential general law enforcement
purpose and therefore is the exact opposite of a special need.”
Maj. op. at 6457. The majority’s point might be well taken if
the courts were authorizing random searches of the general
population. But they are not. What Nevada authorized was a
search of Raymond Lee Scott, who Nevada had charged with
violating the drug laws. Nevada could have incarcerated Scott
pending trial to prevent further criminal activity or, as it chose
6482 UNITED STATES v. SCOTT
here, it could release Scott on OR and require him to submit
to drug testing and search for prohibited substances. Both of
those choices are clearly related to Nevada’s interest in pre-
venting “more criminal activity by him after he is released.”
NEV. REV. STAT. § 178.4853(9). By failing to recognize these
interests, the majority grossly misrepresents the government’s
interest in protecting the public through supervising individu-
als 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 a defendant “who uses drugs while on pre-trial
release could be so overcome by the experience that he misses
his court date” or “may be too mentally impaired to partici-
pate meaningfully in the proceedings.” Maj. op. at 6458. The
majority concedes that these are “conceivable justifications,”
but asserts that the “government has produced nothing to sug-
gest these problems are common enough to justify intruding
on the privacy rights of every single defendant out on pre-trial
release” and must do so “empirically.” 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
UNITED STATES v. SCOTT 6483
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
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
6484 UNITED STATES v. SCOTT
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
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 6461
(footnote omitted). While technically I agree that pretrial
releasees have not had a judicial abridgment of their constitu-
tional 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) (Ginsburg, 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 sub-
ject, as in this case, to the condition that he seek formal per-
mission from the court (at significant expense) before
exercising what would otherwise be his unquestioned right to
travel outside the jurisdiction.” Id. at 278. A defendant who
could not post bail or obtain release on OR faces a much
UNITED STATES v. SCOTT 6485
larger deprivation of liberty 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 preparation 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 dissenting 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
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
6486 UNITED STATES v. SCOTT
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
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]re-trial releasees are not probationers,” they are
separated from confinement only by a few hundred dollars or
a signature on a consent form. Maj. op. at 6460.
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.7
7
The majority describes my use of the term “waiver” as “mistaken[ ]”
and says “[t]he question here is whether the government can induce Scott
UNITED STATES v. SCOTT 6487
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-
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 the
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-
to waive his Fourth Amendment rights.” Maj. op. at 6449 n.4. The major-
ity admits that the “government is under no duty to grant” Scott pretrial
release. Id. at 6450. 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.
6488 UNITED STATES v. SCOTT
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-
sion. As the majority acknowledges, “[m]any pre-trial detain-
ees 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 6450. 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
pretrial release conditions. See, e.g., 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 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); ARIZ. RULES CRIM. PROC., Rule
UNITED STATES v. SCOTT 6489
7.3(b)(4) (providing for pre-trial release subject to “[a]ny
other condition . . . which the court deems reasonably neces-
sary”); CAL. PENAL CODE § 1318(a)(2) (requiring a “defen-
dant’s promise to obey all reasonable conditions imposed by
the court or magistrate” before he can be released on his own
recognizance); HAW REV. STAT. § 804-7.1(9) (permitting court
to require, as a condition 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”); 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”); MONTANA STAT. 46-9-108(1)
(“The court may impose any condition that will reasonably
ensure the appearance of the defendant as required or that will
ensure the safety of any person or the community . . . .”); NEV.
REV. STAT. § 178.484(8) (permitting trial courts to “impose
such reasonable conditions on the person as it deems neces-
sary to protect the health, safety and welfare of the commu-
nity to ensure that the person will appear at all times and
places ordered by the court . . .”); 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.”);
WASH. CR. R. 3.2(b)(7) (empowering state courts to “[i]mpose
any condition other than detention deemed reasonably neces-
sary to assure appearance as required”). Moreover, at least
California has interpreted its rule to permit random drug test-
ing and warrantless search conditions. See In re York, 892
P.2d at 815 (upholding a 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
6490 UNITED STATES v. SCOTT
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 defers the question
whether federal pretrial release conditions are constitutional,
maj. op. at 6459 n.8, but its principles apply no less to the fed-
eral system than to Nevada and the other states in the circuit.
The majority’s decision invalidates the United States govern-
ment’s pre-trial release condition unless federal officers can
first demonstrate probable cause to support 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 6450, but, under the majority’s decision, their Fourth
Amendment rights will be secure while they rest in the county
jail.8
8
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”:
UNITED STATES v. SCOTT 6491
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 6451. Nothing that I have said here
would sanction such actions, and I do not see that Nevada has
done so here.
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.
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).
UNITED STATES v. SCOTT 6493
Volume 2 of 2
6494 UNITED STATES v. SCOTT
CALLAHAN, Circuit Judge, with whom O’SCANNLAIN,
KLEINFELD, GOULD, TALLMAN, BYBEE, and BEA, Cir-
cuit Judges, join, dissenting from denial of rehearing en banc:
The panel majority holds that a person arrested for drug
offenses may not as a condition of pretrial release consent to
searches for drugs on the basis of reasonable suspicion rather
than probable cause. The majority’s groundbreaking opinion
misconceives the reality of pretrial release and the applicable
constitutional principles, and substantially undermines and
seriously burdens pretrial-release proceedings in the nine
states covered by our circuit. I cannot endorse this flawed
approach.
The majority’s opinion is built on two false pillars. First,
the majority asserts that defendants released pending trial
“have suffered no judicial abridgment of their constitutional
rights.” Am. Op. at 6461.1 While one might quibble over
whether there is a “judicial” abridgment, the reality is that
there is an abridgment and a court is involved. When a person
is arrested, his constitutional rights are naturally abridged; the
arrest is followed by a judicial determination as to the extent
to which his rights may be abridged. A court determines
whether he is entitled to pretrial release or may be held with-
out bail.
Second, the majority’s opinion posits that the presumption
of innocence is applicable to the determination concerning
pretrial release. Id. at 6464. This is true only in the broad
sense that all participants recognize that to obtain a convic-
tion, the prosecution will have to overcome this presumption
by proving guilt beyond a reasonable doubt. But the Supreme
Court has held that the presumption plays no role in a trial
1
All references to the majority’s decision are to the majority’s amended
opinion filed contemporaneously with today’s order denying the govern-
ment’s suggestion for rehearing en banc. In the same vein, all references
to the dissent are to Judge Bybee’s revised dissenting opinion.
UNITED STATES v. SCOTT 6495
court’s determination of what conditions, if any, will permit
a defendant’s pretrial release. Bell v. Wolfish, 441 U.S. 520,
533 (1979). In other words, a trial court may presume the
validity of the criminal charges against the defendant at this
initial step in the criminal proceedings.
Once these misconceptions are realized, there is little
weight to the majority’s arguments for an elevated showing of
special need or for holding that the defendant is constitution-
ally barred from consenting to a drug search on the basis of
reasonable suspicion.
I.
Nevada police arrested the defendant for possession of
methamphetamine and drug paraphernalia. A few days later,
he appeared before a state judge, who held a hearing and
released the defendant on his own recognizance, subject to the
defendant’s consent to several conditions of pretrial release.
On a preprinted release form, the state judge checked some of
the conditions on the form, allowing for the warrantless test-
ing of the defendant for drug use as well as the warrantless
search of his home for drugs during his period of pretrial
release. The defendant understood and consented to these
conditions. He also agreed not to possess a firearm.
Shortly after his release, a supervision officer received a tip
that the defendant was in possession of a handgun, a sawed-
off shotgun, and drug paraphernalia specific to the manufac-
ture of methamphetamine. Officers went to the defendant’s
home to conduct a compliance visit and the defendant invited
them inside upon their arrival. The defendant submitted a
urine sample indicating that he had been using methamphet-
amine, at which point he was handcuffed and asked whether
he had any weapons. He admitted to having “several toy
guns” and, when asked where these toy guns were, he ges-
tured to the television set in the room. When looking at the
television set, one of the officers immediately spotted a nylon
6496 UNITED STATES v. SCOTT
holster that had a gun in it with both the grip and the barrel
sticking out. It was a sawed-off shotgun.
The defendant was charged in federal court for possessing
a shotgun, and he moved to suppress the shotgun and the
statements he had made to the officers. The government
argued that the officers reasonably suspected that the defen-
dant was breaching his pretrial-release conditions. The district
court granted the suppression motion, concluding that proba-
ble cause was needed to search the defendant’s home. Finding
that the officers lacked probable cause, the court held the
search unreasonable in violation of the Fourth Amendment.
The government then brought this interlocutory appeal.
II.
The panel majority recognizes that this case presents “an
issue of first impression in any federal circuit and the vast
majority of state courts.” Am. Op. at 6447. This may be
because it is well established that trial courts have consider-
able discretion to place a defendant on pretrial release with
reasonable conditions that (1) further the State’s interest in
protecting the community from the harms inherent in the
charged criminal activity and (2) ensure the defendant’s
appearance in the subsequent judicial proceedings.
The panel majority supports its decision by arguing that
pretrial releasees have suffered “no judicial abridgment of
their constitutional rights.” Id. at 6461. The panel majority’s
reasoning cannot be reconciled with cases holding that indi-
viduals charged with crimes but freed on pretrial release have
a lesser expectation of privacy than the ordinary citizen,
thereby allowing the imposition of reasonable pretrial-release
conditions. See, e.g., State v. Ullring, 741 A.2d 1065, 1069
n.3, 1073 (Me. 1999) (concluding that probable cause is not
required to search the home of a pretrial releasee accused of
drug offenses); In re York, 892 P.2d 804, 813 (Cal. 1995). The
Supreme Court has similarly held that a pretrial releasee is
UNITED STATES v. SCOTT 6497
considered in some ways to be in custody. See Hensley v.
Mun. Ct., 411 U.S. 345, 349 (1973) (noting that “a substantial
number of courts, perhaps a majority, have concluded that a
person released on bail or on his own recognizance may be ‘in
custody’ ” and this line of cases “reflects the sounder view”).
The concept that a pretrial releasee has a diminished expec-
tation of privacy from that of an ordinary citizen is magnified
by the fact that a pretrial releasee is saddled with greater bur-
dens and is “scarcely at liberty[.]” Albright v. Oliver, 510 U.S.
266, 279 (1994) (Ginsburg, J., concurring). This concept of
lessened constitutional demands in the unique context of pre-
trial release makes a great deal of sense. For instance, unlike
the ordinary citizen, a pretrial releasee must appear in court
at the state’s command and “seek formal permission from the
court . . . before exercising what would otherwise be his
unquestioned right to travel outside the jurisdiction.” Id. at
278.
One of the most solid pronouncements of the diminished-
expectation standard comes from a unanimous decision by the
California Supreme Court in York. There, a state magistrate
judge asked a set of defendants who were charged with drug
felonies to choose between remaining in custody pending trial
or obtaining pretrial release based on conditions that included
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.” 892 P.2d at 806 (alterations in
original) (internal quotation marks omitted). The core argu-
ment presented by the defendants in York—that the Fourth
Amendment is violated by the imposition of warrantless drug-
testing and search conditions on pretrial releasees—mirrors
the argument made by the defendant here. The California
Supreme Court rejected this claim on the ground that pretrial
releasees lack “the same reasonable expectation of privacy as
that enjoyed by persons not charged with any crime[.]” Id. at
813. The court reasoned that such individuals have “no consti-
6498 UNITED STATES v. SCOTT
tutional right to be free from confinement prior to trial and
therefore lack[ ] the reasonable expectation of privacy pos-
sessed by a person unfettered by such confinement.” Id. The
court further explained that “an incarcerated individual gener-
ally is subject to random drug testing and warrantless search
and seizure in the interest of prison security” and that the sub-
ject conditions “do not place greater restrictions [on a] relea-
see’s privacy rights than the releasee would have experienced
had he or she not secured [ ] release.” Id.
Unlike the panel majority in our case, the York court dis-
missed the notion that the challenged conditions impermiss-
ibly required a defendant to consensually “waive” any Fourth
Amendment right that he may have otherwise retained had
pretrial release been denied.2 Id. at 811. The court noted that
“the conditions simply define the degree of liberty that the
court or magistrate, in his or her discretion, has determined is
appropriate to grant to the [ ] releasee.” Id. at 813. Nonethe-
less, the court recognized that such conditions should be rea-
sonably limited based on “the relationship of the condition to
the crime or crimes with which the defendant is charged[.]”
Id. at 815 n.10. Finding the search and drug-testing conditions
reasonable because they “clearly relate to the prevention and
detection of further crime and thus to the safety of the pub-
lic[,]” the court held that such warrantless searches and ran-
2
The panel majority in the instant case admits that the “government is
under no duty to grant” pretrial release to the defendant. Am. Op. at 6450.
If that is so, why may a defendant not submit to searches in exchange for
pretrial release? As Judge Bybee points out, “[i]n one sense, the govern-
ment has no more ‘induced’ [the defendant] to forgo his Fourth Amend-
ment rights in exchange for his liberty, than [the defendant] has ‘induced’
the government to forgo its right to require bail in exchange for the right
to search him[.]” Revised Dissent at 6487 n.7. Rather than focusing on
whether the Fourth Amendment allows the defendant to temporarily per-
mit the State to search him, the more relevant question is whether the
agreement was reasonable. As Judge Bybee notes, at the time when the
defendant agreed to his pretrial-release conditions in exchange for release,
he was in a much better position than this court to weigh the reasonable-
ness of the government’s proposal. Id. at 6487.
 UNITED STATES v. SCOTT 6499
dom drug testing do not violate the Fourth Amendment. Id. at
810.
The panel majority’s failure to accept the State’s expressed
interests is particularly troubling in this case, where drugs are
directly at issue and the authorities supervising the defen-
dant’s pretrial release “must be able to act based upon a lesser
degree of certainty than the Fourth Amendment would other-
wise require in order to intervene before [the person] does
damage to himself or society.” Griffin v. Wisconsin, 483 U.S.
868, 879 (1987). The record shows that the defendant was
arrested, inter alia, for felony drug-possession and the super-
vising authorities, pursuant to release conditions that defen-
dant had agreed to follow, searched his home because the
circumstances gave rise to a reasonable suspicion that he pos-
sessed drug paraphernalia and other contraband. Even assum-
ing that the State had a lesser interest because the defendant
had not been convicted, it does not follow that the State
retained no interest in intervening before the defendant did
“damage to himself or society.” Id.
It is therefore apparent that the panel majority’s new
probable-cause rule fails the “touchstone” of Fourth Amend-
ment analysis, which “is always ‘the reasonableness in all the
circumstances of the particular governmental invasion[.]’ ”
Pennsylvania v. Mimms, 434 U.S. 106, 108-09 (1977) (quot-
ing Terry v. Ohio, 392 U.S. 1, 19 (1968)) (emphasis added).
The panel majority should have examined the circumstances
applicable to the defendant’s pretrial release and then weighed
the legitimate interests of the State against the defendant’s
privacy interests. Under the prescribed approach, the searches
that took place in this case were constitutionally reasonable.
Moreover, the panel majority fails to heed the Supreme
Court’s recognition that the State’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
v. United States, 569 A.2d 124, 126-27 (D.C. 1989) (high-
6500 UNITED STATES v. SCOTT
lighting Congress’s concern with the increasing level of
crimes committed by defendants on pretrial release). The
panel majority claims to accept that community protection is
a compelling interest, but then brushes it aside by calling
crime prevention “the exact opposite of a special need.” Am.
Op. at 6457. This is confusing. As Judge Bybee reasons in his
dissent, “[t]he majority’s point might be well taken if the
courts were authorizing random searches of the general popu-
lation.” Revised Dissent at 6481. But there is no claim that
such random searches are occurring. In fact, what the State
permitted was a search of a specific individual, who has been
charged with the violation of state drug laws and who had
specifically consented to the search for drugs. He had the
option of sleeping on a springboard cot in a cold jail cell or
choosing to be surrounded by the comforts of his own home
while the judicial proceedings against him moved forward.
The latter choice came with some strings that were irrefutably
related to the State’s interest in preventing “more criminal
activity by him after he is released[,]” NEV. REV. STAT.
§ 178.4853(9), but neither his choice nor these strings neces-
sarily raise any constitutional problem.
The panel majority amends its original opinion in an
attempt to clarify that a trial judge must make some kind of
specific finding or “individualized determination” that certain
search conditions are necessary for a defendant in order to
make sure that he shows up for trial and to protect the com-
munity from further crimes. But this ignores the fact that an
individualized determination was made.3 The defendant here
had already been arrested on probable cause for committing
various drug offenses when he went before the state judge.
Thus, there was a specific need to prevent this defendant from
3
It seems a little disingenuous for the panel majority to suggest that the
United States, which was not a party to the state court proceedings, some-
how “concedes” that the state court proceeding was not individualized by
noting that the conditions were “checked off by a judge from a standard
list of pre-trial release conditions.” Am. Op. at 6448.
UNITED STATES v. SCOTT 6501
continuing to use drugs if he was to be released into the gen-
eral population. It is plain to see that the specialized findings
the majority appears to contemplate have already been made.4
III.
The majority’s conclusion that “the assumption that [the
defendant] was more likely to commit crimes than other
members of the public . . . is contradicted by the presumption
of innocence” is breathtaking and cannot be reconciled with
reality or existing case law. Am. Op. at 6463-64. The
Supreme Court has rejected this rationale:
The presumption of innocence is a doctrine that allo-
cates the burden of proof in criminal trials; it also
may serve as an admonishment to the jury to judge
an accused’s guilt or innocence solely on the evi-
dence adduced at trial . . . . But it has no application
to a determination of the rights of a pretrial detainee
during confinement before his trial has even begun.
Bell v. Wolfish, 441 U.S. 520, 533 (1979) (emphasis added)
(internal citations omitted).
Other courts and Congress have also rejected the panel
majority’s presumption-of-innocence argument by treating
charged individuals differently than the ordinary citizen. See,
e.g., 18 U.S.C. § 922(n) (punishing indicted defendants who
receive or ship firearms in interstate commerce); 18 U.S.C.
§ 3577, subsequently renumbered as 18 U.S.C. § 3661
(imposing penalties by allowing consideration of prior
4
I find troubling the majority’s impression that, in lieu of specialized
judicial determinations of the need to appear at trial, the legislature could
act to authorize these conditions on drug defendants in order to prevent
further criminal activity. The fact of the matter is that the legislature has
already acted and Judge Bybee’s dissent makes this point clear, and makes
the added point that the consensual search conditions are not an authoriza-
tion to search a member of the general public.
6502 UNITED STATES v. SCOTT
arrests); United States v. Craven, 478 F.2d 1329, 1339 (6th
Cir. 1973) (deeming “eminently reasonable” a federal statu-
tory classification that punishes indicted persons because the
fact of a felony indictment is “so often indicative of a propen-
sity for violence”); Speight, 569 A.2d at 128-29 (determining
that a local statute’s imposition of greater punishment for
crimes committed by pretrial releasees as opposed to ordinary
citizens does not violate the presumption of innocence). Even
the Federal Rules of Evidence are contrary to the panel major-
ity’s presumption-of-innocence rationale. See FED. R. EVID.
404(b) (rendering evidence of other arrests admissible for the
purpose of proving motive or intent). Accordingly, as noted
by the Supreme Court, it is important to recognize that “[t]he
government’s interest in preventing crime by arrestees is both
legitimate and compelling.”5 Salerno, 481 U.S. at 749.
5
It is also worth noting that the majority’s opinion has been criticized
regarding its negative repercussions for criminal defendants and the
defense bar in general. Judge Bybee observes in his dissent that the major-
ity’s opinion “is not a liberty-enhancing decision,” Revised Dissent at
6488, because “[i]t is not hard to imagine that some jurisdictions will
decide that releasing persons accused of crimes . . . without such condi-
tions will not serve the public interest [and] may respond by . . . holding
the accused pending trial.” Id. at 6490. Such defendants will want to thank
the majority for securing their Fourth Amendment rights as “they rest in
the county jail.” Id. at 6490. Judge Bybee’s foresight has been echoed by
the defense bar, noting that even though the majority is attempting to pro-
tect “the ideal espoused in our legal system that a citizen is innocent until
proven guilty, . . . it is only fair to point to the problems that this may
create from a policy standpoint. If all suspects charged with a crime retain
all their rights if they are released, why would the state release them? I
mean, they have to set reasonable bail, but if the accused cannot afford
this bail, (so mainly the poor), they will have to remain behind bars until
their trial.” http://www.blogdenovo.org/archives/001073.html (last
accessed June 1, 2006). Even the Harvard Law Review has criticized the
majority’s reasoning: “Although the [panel majority] boldly sought to pro-
tect privacy and liberty rights[,] . . . its reasoning suffers from [ ] signifi-
cant limitations that undermine the effectiveness of the court’s efforts and
provide a means for future courts to diminish the Fourth Amendment safe-
guards the court so daringly sought to protect.” 119 HARV. L. REV. 1630,
1630-31 (Mar. 2006) (footnotes omitted). The law review also states: “The
importance of an opinion . . . often lies not in the specific outcome it
UNITED STATES v. SCOTT 6503
IV.
The majority’s discussion of “special needs” and “totality
of the circumstances” fails to acknowledge that each judicial
hearing on conditions of pretrial release is tailored to the indi-
vidual defendant. The majority apparently does not believe
the link between drug use and the risk of non-appearance is
“obvious” because “the Nevada legislature has not taken the
categorical position that drug use among pre-trial releasees
substantially impairs their tendency to show up in court[.]”
Am. Op. at 6458-59 & n.7.
While it may be true that the relevant state statute lacks
such a specific pronouncement, it is not clear why the major-
ity thinks such a pronouncement is necessary. As a federal
court, we should be cautious to impose such conditions on a
state legislature, especially where it was entirely reasonable
for the state judge in this drug case to determine that a condi-
tion prohibiting alcohol and drug use was necessary to protect
the public and secure the defendant’s appearance in further pro-
ceedings.6 Why is anything more necessary when, as here, the
reaches, but rather in the framework it lays down for the resolution of
future cases. Thus, while the [majority’s] holding purport[s] to protect pri-
vacy and liberty interests[,] . . . its reasoning threatens that aim.” Id. at
1637 (footnote omitted).
6
Almost every pretrial hearing (and certainly this one) is tailored to the
individual defendant. Among other factors, the trial court considers the
particular charges in determining whether a defendant poses a danger to
the community or to himself, or is likely to appear at trial. Although the
panel majority claims that “[t]here is no evidence that the [bail] conditions
were the result of findings made after any sort of hearing” the record tells
a different story. Am. Op. at 6448. In this case, the pretrial-release form
was preprinted and gave the state judge the option of imposing twelve
release conditions, each requiring a separate determination by the judge as
to whether that condition would be necessary in the case at hand. The
judge did in fact hold a hearing and specifically determined that eight of
the twelve conditions served an important and useful purpose in this case,
and he even fixed a handwritten notation that limited the kind of warrant-
6504 UNITED STATES v. SCOTT
conditions allowing for random drug testing and searches
were rationally related to the State’s interests in protecting its
citizens and assuring the defendant’s presence at trial? This
unanswerable question signals the error in the majority’s rea-
soning.
Furthermore, the premise that drug use creates a tendency
for non-appearance is sound. Congress has determined that it
is perfectly reasonable to assume that individuals arrested on
drug charges pose a greater risk of non-appearance at trial.7 In
addition, the First Circuit has recognized and listed the “con-
siderable evidence that drug offenders pose[ ] a special risk of
‘flight[.]’ ” United States v. Jessup, 757 F.2d 378, 385 (1st
Cir. 1985), abrogated on other grounds by United States v.
O’Brien, 895 F.2d 810 (1st Cir. 1990). Citing from the record
of Congress’s Bail Reform Hearings held in 1981, the First
Circuit observed that drug offenders account for about one-
sixth of all crimes charged but about one-half of all bail jump-
ers. Jessup, 757 F.2d at 385. That court went on to note that
a study conducted by the Administrative Office of the United
States Courts revealed that about one-third of the defendants
who do not appear for their pretrial hearings are charged with
narcotics violations. Id. at 397-98. In sum, there is every rea-
son to conclude that the search conditions imposed on the
defendant in the instant case were reasonably calculated to
less searches that could be conducted. See Supplemental Excerpts of
Record at 95:11-18 (Suppression Hr’g Tr.); see also Mot. to Suppress at
2:11-12; Release Order (E. Fork Justice Ct. Apr. 30, 2003). The judge
expressly stated that such searches could only be made for the purpose of
finding controlled substances and alcohol. I am bewildered by the majori-
ty’s unwillingness to consider these established record facts.
7
For example, 18 U.S.C. § 3142(e) establishes the presumption “that no
condition or combination of conditions will reasonably assure the appear-
ance of the person as required and the safety of any other person and the
community,” where an arrestee is charged with a drug-trafficking offense
bearing a statutory maximum sentence of 10 years or more.
UNITED STATES v. SCOTT 6505
assure his appearance at trial and protect the community from
the repetition of the alleged narcotics crimes.8
V.
The panel majority does not quarrel with the fact that the
defendant’s signed pretrial-release agreement clearly
expressed and unambiguously informed the defendant of the
search conditions. In assessing the constitutionality of the
drug test and the search of the defendant’s residence, how-
ever, the panel majority minimizes the importance of the
defendant’s consent.
The panel majority calls the defendant’s consent an “un-
constitutional condition” whereby the government may not
require a person to give up a constitutional right in exchange
for a discretionary benefit conferred by the government where
the benefit sought has little or no relationship to the right at
issue. Id. at 6450-52. There are two readily perceived prob-
lems with this line of reasoning. First, as Judge Bybee notes
in his dissent, no court has ever suggested that Fourth Amend-
ment rights cannot be temporarily limited by agreement, at
least not when the agreement is rationally related to changes
in the individual’s legal status. See Wyman v. James, 400 U.S.
309, 326 (1971) (allowing the conditioning of family-welfare
payments on the recipient’s submission to warrantless
searches of her home).
Second, defining a defendant’s consent to conditions of
pretrial release as the panel majority has done detracts from
8
The State may also want to impose pretrial-release conditions involv-
ing random drug tests and warrantless searches for drugs to ensure that
when the accused shows up for court he is not under the influence of any
drugs. The State has a strong stake in preserving its judicial resources and
these pretrial-release conditions help guarantee that a defendant charged
with drug possession is physically and mentally prepared for proceedings
so as to ward off delays or claims that he was unable to understand the
proceedings or participate meaningfully in his case.
6506 UNITED STATES v. SCOTT
the real import for the unconstitutional-conditions doctrine.
As the government notes in its petition for rehearing, the doc-
trine would apply, for example, where the State qualifies an
accused’s pretrial release on his agreement to forgo his First
Amendment right to make public statements criticizing the
government. There, the limitation of a constitutional right is
not related to a state’s legitimate interest in conditioning pre-
trial release. Here, the defendant was arrested on probable
cause for possessing controlled substances and drug parapher-
nalia and was then released on his agreement to refrain from
committing similar offenses and agreeing to drug testing and
the warrantless search of his premises specifically for drug
contraband. A search condition designed to assess the defen-
dant’s compliance with another condition of his release may
be reasonably related to the benefit offered by the government
as a quid pro quo and thereby not run afoul of the doctrine.
The question here is not whether all pretrial releasees must
agree to all searches. Rather, we have a defendant who has
been charged with drug offenses and who has agreed to
searches limited to drug and alcohol use on the basis of rea-
sonable suspicion rather than requiring a warrant based on
probable cause. Why is this not a reasonable bargain for being
released on personal recognizance?9
VI.
Finally, I am deeply concerned that the panel’s novel
approach has effectively revoked important pretrial-release
procedures throughout our circuit and has created many
uncertainties to bedevil the state and federal trial courts. Judge
Bybee’s list of states that have pretrial rules similar to the one
at issue here dispels any uncertainty about the considerable
9
Assuming that a pretrial releasee may have more “rights” than a proba-
tioner still begs the question: Why should the defendant be constitutionally
prohibited from making this bargain? The panel majority’s opinion creates
more questions than it answers.
UNITED STATES v. SCOTT 6507
impact of the panel majority’s opinion.10 Revised Dissent at
6488-89. In fact, every state in our circuit, from Arizona to
Alaska, has a similar rule. Id. at 6488. The federal govern-
ment is also impacted—despite the majority’s murky dis-
claimer that its decision “express[es] no view on this point”—
as the federal government enjoys the same kind of broad dis-
cretion where pretrial releasees are concerned. See 18 U.S.C.
§ 3142(c)(1)(B)(xiv) (permitting pretrial release subject to
“any other condition that is reasonably necessary to assure the
appearance of the person as required and to assure the safety
of any other person and the community”). Indeed, the stan-
dard pretrial-release form used by all federal district courts
provides as a release condition that the defendant “submit to
any method of testing required by the pretrial services office
or the supervising officer for determining whether the defen-
dant is using a prohibited substance.” 7 Fed. Proc. Forms
§ 20:110 (“AO Form 199B”).
While the majority attempts to limit the impact of its ruling
on the federal pretrial program, it is difficult to imagine why
the majority’s reasoning would not apply to federal-pretrial
cases. As Judge Bybee presciently observes, the majority’s
decision would invalidate the federal government’s pretrial-
release search conditions unless federal pretrial officers can
first demonstrate probable cause to support those conditions.
Revised Dissent at 6490. The impact has been immediate. To
be sure, in the Central District of California, a district that
reportedly has one of the highest number of drug offenses in
the nation, district judges have informed the relevant supervi-
sion authorities not to enforce any drug-testing or warrantless-
10
The panel majority may want us to believe that its decision only
affects Nevada, but this ipse dixit is not persuasive. The proof is in the
pudding: a Montana state court has already found that the panel majority’s
opinion applies to Montana’s pretrial-release procedures, holding that “if
the government cannot make the requisite special needs showing, law
enforcement needs to have probable cause to search a pretrial individual.”
State of Montana v. Hurlbert, No. DC-05-242, 2006 Mont. Dist. LEXIS
19, at *13 (Mont. 18th Jud. Dist. Ct. Jan. 30, 2006).
6508 UNITED STATES v. SCOTT
search conditions in existing pretrial-release orders. These
judges have determined that the panel majority’s ruling flatly
prohibits them from imposing such conditions.11
The majority’s amended opinion does not alleviate these
concerns nor the widespread apprehension that its novel
approach will affect the validity of other pretrial-release con-
ditions imposed for the protection of the community. The
regime ushered in by the majority places additional burdens
on the federal and state governments that are already tasked
with the difficult job of monitoring and enforcing compliance
with pretrial-release conditions. What is most unfortunate is
that the majority claims to accomplish these ends in the name
of the Fourth Amendment by insisting in an unprecedented
manner that defendants released pending trial have not suf-
fered a judicial abridgment and that the presumption of inno-
cence is applicable to the determination of pretrial release.
Failing to rehear this case en banc, we regrettably succumb to
a dangerous, disruptive, and poorly conceived sea change
foisted upon all of the states and federal districts encompassed
by the Ninth Circuit. Allowing the panel majority’s decision
to stand distinguishes our circuit’s pretrial-release procedures
from every other circuit in a manner detrimental to both pros-
ecutors and defendants alike. Our only hope can be for the
Supreme Court to steer us back on course. For all of the fore-
11
The government knows of at least one brave magistrate judge who has
broken rank by determining that the panel majority’s decision does not
apply to federal pretrial releasees. Nonetheless, other federal judges have
imported the panel majority’s reasoning into the federal pretrial-release
context. For example, in United States v. Skirving, the district court and
the government shared the view that the panel majority’s decision does
apply to federal pretrial-release conditions. Skirving, No. 01-321-04, 2005
U.S. Dist. LEXIS 38854, at *4, *9, 2005 WL 3436525, at *1, *3 (D. Or.
Dec. 14, 2005). This is not surprising given that the standard federal
pretrial-release form includes a provision that gives pretrial-release offi-
cers the apparent discretion to require “any method of testing.” AO Form
199B (entitled “Additional Conditions of Release”). Despite the revisions
in the majority’s amended opinion, federal judges and U.S. Attorneys have
every reason to wonder what they are supposed to do in the future.
UNITED STATES v. SCOTT 6509
going reasons, I respectfully dissent from today’s order deny-
ing en banc review.