dissenting:

The majority holds that probable cause is required for the warrantless search of the person or home of a pretrial releasee. This is not only an issue of first impression in our circuit, it is an issue of first impression in any federal court. In a case to which no state is a party, the majority casually adopts a rule that carries monumental implications for the pretrial procedures employed by every state in our circuit, as well as the United States.

*899 While the question is one of first impression, we are not without guidance. There is a body of jurisprudence — both state and federal — examining the status of probationers, parolees, and presentence and pretrial releasees. Based on my reading of the cases in this arena, I cannot agree with the majority’s new per se rule. If the “touchstone of our analysis under the Fourth Amendment is always ‘the reasonableness in all the circumstances of the particular governmental invasion[,]’ ” then an individualized inquiry must be undertaken to determine if the particular condition imposed is, in fact, “reasonable.” Pennsylvania v. Mimms, 434 U.S. 106, 108-09 , 98 S.Ct. 330 , 54 L.Ed.2d 331 (1977) (quoting Terry v. Ohio, 392 U.S. 1, 19 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (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 warrantless searches of probationers, parolees, and presentence releasees — I do not believe that probable cause was necessary to search Scott’s person for drugs. Once obtained, the positive drug test result gave rise to probable cause to search Scott’s living room. I respectfully dissent.

I. FACTS AND PROCEEDINGS BELOW

The individualized inquiry that I find necessary calls for a fuller development of the facts than that proffered by the majority. Raymond Lee Scott was charged in Douglas County, Nevada with one felony and two misdemeanors related to the possession of methamphetamine and drug paraphernalia. Two days later, Scott was released on his own recognizance (“OR”), subject to his consent to several conditions 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 submit to “random drug and alcohol testing, anytime of the day or night by any peace officer without a warrant”; and to submit himself, his residence and his vehicle “to search and seizure 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 dangerous weapons[.]” Finally, Scott’s release form provided that “[a]ny law enforcement officer having probable cause to believe the named defendant has violated a condition of this release is ordered to arrest the person.”

Shortly after his release, Douglas Swalm, a probation officer 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 information, and without obtaining a warrant, Swalm conducted a “compliance visit” at Scott’s residence, accompanied by probation officer Nathan Almeida and several sheriffs deputies and narcotics agents. Upon their arrival, Scott invited the officers 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 having “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 *900 television set across the room, where Al-meida spotted a nylon holster that appeared to have a gun in it with both the grip and the barrel protruding from the holster. 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 shotgun and the statements he made during the search. The government 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. Balancing Scott’s privacy interests against the “legitimate interests 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 , 122 S.Ct. 587 , 151 L.Ed.2d 497 (2001)). Finding no probable cause, the court held the search unreasonable in violation of the Fourth Amendment. The government timely appealed to this court.

II. STANDARD FOR WARRANTLESS SEARCH OF PRETRIAL RELEASEE

Scott contends that the district court properly determined that probable cause, rather than reasonable suspicion, was necessary to justify the search of his home. The government maintains that reasonable suspicion is the only standard applicable to pretrial releasees, and that such suspicion was satisfied 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 tuith Diminished Liberty Interests

1. Probationers, Parolees, and Presen-tence and Pretrial Releasees

Courts have distinguished the liberty interests of individuals 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 probationers 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 probable 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 defendant convicted of drug possession must submit to search *901 of his home at any time whenever requested by a probation officer); 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, 19 Cal.4th 743 , 80 Cal.Rptr.2d 734 , 968 P.2d 445 (1998) (upholding search condition as it applied to parolee); Wayne R. Lafave, Search And SeizuRE: A Treatise On The FoüRth 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 convicts released pre-sentencing. In State v. Fisher, 145 Wash.2d 209 , 35 P.3d 366 (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:

Id. at 375-76 (emphasis in original). Other courts have similarly 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, 140 Idaho 484 , 95 P.3d 635, 638 (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 postconviction, 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 considered 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 (8th 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 presumption 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 *902 rights than other prisoners. Bell v. Wolfish, 441 U.S. 520 , 99 S.Ct. 1861 , 60 L.Ed.2d 447 (1979) (treating pretrial detainees the same as prisoners convicted of an offense); William E. Ringel, Seaeches AND SEIZURES, ARRESTS AND CONFESSIONS § 17:9 (2005). Thus, a search of a pretrial detainee’s cell, Soldal v. Cook County, 506 U.S. 56, 65 , 113 S.Ct. 538 , 121 L.Ed.2d 450 (1992); Hudson v. Palmer, 468 U.S. 517 , 104 S.Ct. 3194 , 82 L.Ed.2d 393 (1984), as well as the random monitoring and recording of a pre trial detainee’s telephone conversations on a prison telephone have not been held to violate the Fourth Amendment. See United States v. Willoughby, 860 F.2d 15 (2d Cir.1988).

Although pretrial releasees may not lose their Fourth Amendment rights, until today’s decision we have not squarely addressed whether pretrial releasees have diminished Fourth Amendment rights. Specifically, does a search of a pretrial releasee require probable cause? But the question has been addressed by state courts. Each has determined that war-rantless search conditions may be imposed on a pretrial releasee 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, 9 Cal.4th 1133 , 40 Cal.Rptr.2d 308 , 892 P.2d 804 (1995).

The leading case is In re York, where the California Supreme Court determined that a state statute requiring compliance with “reasonable conditions” on pretrial release allowed for warrantless searches and random drug testing. Unable to post the bail prescribed for their offenses, the petitioners 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 reasons. The court first pointed out that defendants released on OR lack

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 *903 to their imposition, in exchange for obtaining 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 conditions attached to the release.” Id. at 814. Recognizing that such restrictions are not unlimited, the court pointed out that the conditions must be “reasonable under the circumstances,” which in turn depends on “the relationship of the condition to the crime or crimes with which the defendant is charged and to the defendant’s background, including his or her prior criminal conduct.” Id. at 815 n. 10. The court then held the search and drug testing conditions reasonable under the circumstances 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 war-rantless search of his home uncovered marijuana, the defendant challenged the trial court’s denial of his motion to suppress the evidence.

The court began by considering the objectives of the bail system in Maine, observing that its purpose is “to ensure the appearance of the defendant at trial and to do so without incarceration as long as conditions can be imposed which will fulfill that purpose and the purpose of ensuring the integrity of the judicial process.” Id. at 1072 . The court reasoned that

Id. at 1072-73 . The court concluded that the random search condition was constitutional because the condition was reasonable as applied to the “history and personal situation of the defendant.” Id. at 1073 . 1 For support, the court appealed to the Supreme Court’s seminal decisions in Griffin and Knights .

*904 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, 107 S.Ct. 3164 . Based on a tip, a probation officer searched Griffin’s home and found a firearm. Griffin was then charged with being a felon in possession of a firearm. Id. at 872, 107 S.Ct. 3164 . The Wisconsin Supreme Court had previously announced a per se rule that “a probation officer may, consistent with the Fourth Amendment, search a probationer’s home without a warrant, and with only ‘reasonable grounds’ (not probable cause) to believe that contraband is present.” Id. at 872, 107 S.Ct. 3164 . 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 officer 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 concluded that “the search of Griffin’s home satisfied the demands of the Fourth Amendment because it fulfilled a ‘special need[, which] make the warrant and probable-cause requirement impracticable.’ ” Id. (citing New Jersey v. T.L.O., 469 U.S. 325 , 105 S.Ct. 733 , 83 L.Ed.2d 720 (1985)).

The Court reexamined the issue in Knights , and held that a warrantless search of a probationer’s apartment was reasonable under the Fourth Amendment where it was authorized by a condition of his probation and supported by reasonable suspicion. Knights, 534 U.S. at 122 , 122 S.Ct. 587 . After obtaining probation for a misdemeanor drug offense, Knights signed a condition that he would “[sjubmit his ... person, property place of residence, 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 , 122 S.Ct. 587 . 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 , 122 S.Ct. 587 .

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 , 122 S.Ct. 587 . The Court rejected this rationale, again emphasizing that Griffin did not decide that all warrantless searches of probationers were reasonable within the meaning of the Fourth Amendment. Id. at 117-18, 122 S.Ct. 587 . 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 , 117 S.Ct. 417 , 136 L.Ed.2d 347 (1996), with the probation search condition being a salient circumstance.” Knights, 534 U.S. at 118 , 122 S.Ct. 587 . 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. Houghton, 526 U.S. 295, 300 , 119 S.Ct. 1297 , 143 L.Ed.2d 408 (1999)). The probation order “clearly expressed the search condition and Knights was unambiguously informed of it.” Id. at 119, 122 S.Ct. 587 . “The probation condition thus significantly diminished Knights’ reasonable expectation of privacy.” Id. The Court also recognized the state’s concern in preventing a probationer *905 from engaging in further criminal activities. Id. at 120-21 , 122 S.Ct. 587 . 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 , 122 S.Ct. 587 .

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 reasonable. 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 applicable to Scott’s pre-trial release, taking into account the crime with which he was chárged and the conditions to which he consented.

The imposition of pretrial search conditions must be adapted to the pretrial re-leasee; 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-Gonzalez, 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 re-leasees; 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 the gap between reasonable suspicion and probable cause. United States v. Montoya de Hernandez, 473 U.S. 531, 540-41 , 105 S.Ct. 3304 , 87 L.Ed.2d 381 (1985) (rejecting an intermediate “clear indication” standard as incompatible with the Fourth Amendment’s “reasonableness” 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 totality of the circumstances. Knights, 534 U.S. at 118-19 , 122 S.Ct. 587 .

B. Fourth Amendment Balancing

In accord with the Court’s analysis in Griffin , I turn to an examination of the standards applied by Nevada courts in releasing Scott on his own recognizance. 2 While “the validity of a search conducted by state law enforcement officers is ultimately a question of federal law”, federal courts “must look to state law to determine the validity of the underlying [release] condition itself, and may consider state precedent for its persuasive value[.]” Ooley, 116 F.3d at 372 (internal citations and quotations omitted). Before releasing a person without bail, 3 a Nevada “court may impose such reasonable conditions on *906 the person as it deems necessary to protect the health, safety and welfare of the community to ensure that the person will appear at all times and places ordered by the court ...” Nev. Rev. Stat. § 178.484 (8). 4 Although the Nevada statutes do not specifically mention warrant-less searches or random drug testing, the list is expressly nonexclusive. Id.

1. The State’s Interests

a. Protecting the public. The majority rejects the state’s interest in protecting the public as a “quintessential general law enforcement purpose [which is] the exact opposite of a special need,” and argues that the presumption of innocence insulates the pretrial releasee from the claim that he is “more likely to commit crimes than other members of society.” Maj. op. at 894-95, 898. First, the state’s interest is not so easily dismissed by referring to the state’s general duty to protect the public or the presumption of innocence. The Court has rejected a similar argument in Knights that warrantless searches of probationers must serve a “special need,” 534 U.S. at 117 , 122 S.Ct. 587 , 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 Crunch) 137, 163, 2 L.Ed. 60 (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 presumption with respect to ordinary civil rights of citizens, such as freedom of movement. See, e.g., U.S. Const, amend. VIII (“Excessive bail shall not be required”; emphasis added). 5

Both courts and Congress have implicitly rejected the majority’s argument by treating persons indicted for crimes differently than ordinary citizens. In Wolfish , the Supreme Court rejected a similar argument, concluding that “[t]he presumption 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 confinement before his trial has even begun.” 441 U.S. at 533 , 99 S.Ct. 1861 . 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 presumption 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 classification punishing indicted persons *907 is irrational on the ground that, in treating indicted persons differently, it “adversely affect[s] the presumption of innoeence[ ]”; stating that the classification is valid since Congress’ conclusion that fact of felony indictment is “so often indicative of a propensity for violence” is “eminently reasonable”); United States v. Brown, 484 F.2d 418, 424 (5th Cir.1973) (same); United States v. Quiroz, 449 F.2d 583, 585 (9th Cir.1971) (same). Cf. 18 U.S.C. § 3577 (approving of consideration of prior arrests in imposing penalties by providing that “[n]o limitation shall be placed on the information concerning the background, 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 innocence.

The majority’s lack of consideration for the state’s expressed interests is especially irresponsible in cases involving “drugs or illegal weapons” where authorities supervising the convict “must be able to act based on a lesser degree of certainty than the Fourth Amendment would otherwise require in order to intervene before [the person] does damage to himself or society.” Griffin, 483 U.S. at 879 , 107 S.Ct. 3164 ; see Kills Enemy, 3 F.3d at 1203 ; State v. Anderson, 140 Idaho 484 , 95 P.3d 635, 638 (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] convictions 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 intervening before Scott did “damage to himself or society.” Griffin, 483 U.S. at 879 , 107 S.Ct. 3164 .

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 , 107 S.Ct. 2095 , 95 L.Ed.2d 697 (1987). See also Speight, 569 A.2d at 126-27 (discussing Congress’s concern with the increase in crimes committed during pretrial release). By failing to recognize these interests, the majority grossly misrepresents the government’s interest in protecting the public through supervising individuals on pretrial release.

b. Securing attendance at trial. With regard to Nevada’s second articulated interest, ensuring that the defendant appears in court, the majority hypothesizes that the state is concerned that the defendant “may use drugs ... and be so overcome by the experience ... that he misses his court date” or “may be too mentally impaired to participate meaningfully in the proceedings.” Maj. op. at 895. The majority writes this off as “highly unlikely” and asserts that the “government has produced nothing to suggest these are common enough problems to justify intruding on the privacy rights of every single defendant out on pre-trial release” and must do so “empirically.” Id.

Thus, without explanation, the majority requires that state governments empirical *908 ly 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 preserving 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 majority ignores the other state interests underlying the conditions. Although random drug tests “cannot be said to relate directly to the likelihood that a defendant will comply with his or her duty to attend subsequent court hearings,” the conditions “clearly relate to the prevention and detection of further crime and thus to the safety of the public.” In re York, 40 Cal.Rptr.2d 308 , 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. Moreover, 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 , 121 S.Ct. 2038 , 150 L.Ed.2d 94 (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 paraphernalia. 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 presentence releasee, but it is less than that of an “ordinary citizen.” 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 circumstance” in the Fourth Amendment balance, Knights, 534 U.S. at 118 , 122 S.Ct. 587 , allowed warrantless searches for controlled substances and alcohol, and implicitly waived the probable cause requirement by imposing “random” drug testing. The consent form “clearly expressed the search condition” and Scott was “unambiguously informed of it.” Id. at 119 , 122 S.Ct. 587 . The conditions on the form, to submit to random drug testing and war-rantless 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 significantly diminished [Scott’s] reasonable expectation of privacy.” 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 *909 based on reasonable suspicion. Once the state administered 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 premises. 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 Ghiffin by stating that “pre-trial releasees are not probationers,” and “[pjeople released pending trial, by contrast, have suffered no judicial abridgment of their constitutional rights.” Maj. op. at 896-97. While technically I agree that pretrial re-leasees have not had a judicial abridgment of their constitutional rights, they have a lesser expectation of privacy than an ordinary citizen. A pretrial releasee suffers great burdens and is “scarcely at liberty[.j” Albright v. Oliver, 510 U.S. 266, 279 , 114 S.Ct. 807 , 127 L.Ed.2d 114 (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[,j ... is often subject, as in this case, to the condition that he seek formal permission from the court (at significant expense) before exercising what would otherwise be his unquestioned right to travel outside the jurisdiction.” Id. at 278 , 114 S.Ct. 807 . A defendant who could not post bail or obtain release on OR faces a much 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 , 95 S.Ct. 854 , 43 L.Ed.2d 54 (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 , 72 S.Ct. 1 , 96 L.Ed. 3 (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

Id. Further, “his employment prospects may be diminished severely, he may suffer reputational harm, and he will experience 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 , 93 S.Ct. 1571 , 36 L.Ed.2d 294 (1973) (pretrial releasee 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[,j which was in custody.” Albright, 510 U.S. at 277-78 , 114 S.Ct. 807 (Ginsburg, J., concurring) (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. Blackstone, Commentaries 297 (bail in *910 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 constrictive 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 permission 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 “[pjretrial 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 896.

This last point requires closer examination of the implications of the majority’s ruling. The majority treats Scott’s assent to the conditions of his OR release as a question of whether the Fourth Amendment permits Scott to waive his Fourth Amendment rights. This seems quite backwards to me. 6 It seems to me that at the time Scott agreed to these conditions in exchange for release on OR he was in a much better position than we are to weigh the reasonableness of the government’s proposed course of conduct. Unless we can find some irreducible right or moral imperative within the Fourth Amendment, one that absolutely forbids pretrial detainees from agreeing to any conditions before they are released, the majority’s approach begs the question.

There are, of course, constitutionally irreducible rights — the right not to be a slave being the prime example. The Court has also suggested that government may not condition to receipt of government largesse, license, or privilege on the waiver of certain rights guaranteed by the Constitution, at least where the condition bears no plausible relationship to the receipt of the benefit. The receipt of a tax exemption cannot be conditioned, for example, on an express waiver of the privilege of criticizing the government. See, e.g., Speiser v. Randall, 357 U.S. 513, 518-19 , 78 S.Ct. *911 1332 , 2 L.Ed.2d 1460 (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] necessarily 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 “persons, houses, papers, and effects” cannot be infringed by statute 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 , 91 S.Ct. 381 , 27 L.Ed.2d 408 (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 decision. As the majority acknowledges, “many pre-trial detainees willingly consent to such conditions, preferring to give up some rights in order to sleep in their own beds while awaiting trial.” Maj. op. at 890. 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 attendance 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., Cal. Penal Code § 1318 (a)(2) (requiring a “defendant’s promise to obey all reasonable conditions imposed by the court or magistrate” before he can be released on his own recognizance); Oe. Rev. Stat. § 135.260(l)(d) (“Conditional release may include one or more of the following conditions ... [a]ny other reasonable restriction designed to assure the defendant’s appearance.”); Nev. Rev. Stat. § 178.484 (8) (permitting trial courts to “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 ... ”); ARiz. Rules Crim. Peoc., Rule 7.3(b)(4) (providing for pre-trial release subject to “[a]ny other condition ... which the court deems reasonably necessary”); Wash. Cr. R. 3.2(b)(7) (empowering state courts to “[ijmpose any condition other than detention deemed reasonably necessary to assure appearance as required”); 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”); Alaska Stat. § 12.30.020 (b)(7)-(e) (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); Montana Stat. 46-9-108(1) (“The court *912 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....”); Idaho Ceim. Rules, Rule 46(c) (allowing court to “impose such reasonable terms, conditions and prohibitions as the court finds necessary in the exercise of its discretion”). Moreover, at least one other state in this circuit has interpreted the rule to permit random drug testing and warrantless search conditions. See In re York, 40 Cal.Rptr.2d 308 , 892 P.2d at 815 (upholding a California pretrial condition requiring the defendant to submit to random drug testing and war-rantless 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)(l)(B)(xiv) (providing for 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”). Importantly, the standard pre-trial release form used by federal courts across the nation requires, as a condition of release, the defendant to “submit to any method of testing required by the pretrial services office or the supervising officer for determining whether the defendant is using a prohibited substance.” 7 Fed. Proc. Forms § 20:110, Order Setting Conditions of Release, Additional Conditions of Release (AO 199B). The form continues: “Such methods may be used with random frequency and include urine testing, the wearing of a sweat patch, a remote alcohol testing system, and/or any form of prohibited substance screening or testing.” Id. (emphasis added). The majority’s decision invalidates the United States government’s pre-trial release condition unless 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 “preferred] to give up some rights in order to sleep in their own beds while awaiting trial,” maj. op. at 890, but, under the majority’s decision, their Fourth Amendment rights will be secure while they rest in the county jail. 7

I am confident that, working within the framework of Griffin and Knights , there is little danger that we will “[g]iv[e] the gov *913 ernment free rein to grant conditional benefits ... [and] abuse its power by attaching strings strategically striking lopsided deals.” Maj. op. at 891. 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 subject 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.

. Likewise, other courts interpreting pretrial release and bail statutes have inquired into the defendant's particular circumstances before upholding 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 individualized 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 contingency”). 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).

. While Nevada courts for many years have applied a "reasonable suspicion” standard to probationary searches, Allan v. State, 103 Nev. 512 , 746 P.2d 138 (1987); Seim v. State, 95 Nev. 89 , 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.

. Under Nevada law, any person "arrested for an offense other than murder of the first degree must be admitted to bail.” Nev. Rev. Stat. § 178.484 (1).

. 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 , 107 S.Ct. 3164 .

. 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 excessive; 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 890-91 n. 6. I do not read the majority opinion to hold that Scott is within the class of persons for whom "any amount of bail'' (or any pretrial conditions) would be excessive under the Eighth Amendment. See United States v. Smith, 444 F.2d 61 (8th 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.

. The majority describes my use of the term "waiver” as "mistaken[]” and says "[t]he question here is whether the government can induce Scott to waive his Fourth Amendment rights.” Maj. op. at 890 n. 5. The majority admits that the "government is under no duty to grant” Scott pretrial release. Id. at 890 . I do not see anything unconstitutional about "inducing” 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 "induced” 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.

. Justice Scalia has colorfully illustrated why it is “not true” that "a constitutional right is by its nature so much more important to the claimant than a statutory right”:

Webster v. Doe, 486 U.S. 592, 618 , 108 S.Ct. 2047 , 100 L.Ed.2d 632 (1988) (Scalia, J., dissenting).