concurring in part, dissenting in part, and concurring in the judgment.
Judge Beam, Judge Murphy, and Judge Bye have prepared thorough and persuasive opinions. As a member of the original three-judge panel, I agree with Judge Beam that the government has mended its hold by raising new arguments in its petition for rehearing en banc. See Steagald v. United States, 451 U.S. 204, 208, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981); In re Hen House Interstate, Inc., 177 F.3d 719, 724 (8th Cir.1999) (en banc) (rejecting a newly raised argument made for the first time in a petition for rehearing en bane). The majority recognizes the panel was correct in its ruling on the issue actually presented to the panel on appeal — the warrant was not issued by a neutral and detached magistrate. Therefore, I join the conclusions of Judge Beam’s dissent, except for the conclusion regarding United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). I am persuaded by Judge Bye’s concurrence and his conclusion Leon and Illinois v. Krull, 480 U.S. 340, 107 S.Ct. 1160, 94 L.Ed.2d 364 (1987), save the day for the government’s evidence seized from Lucas’s residence. Thus, I join Judge Bye’s concurrence affirming the district court’s denial of Lucas’s motion to suppress. I also concur in part III of the majority opinion.
BEAM, Circuit Judge, with whom WOLLMAN and ARNOLD, Circuit Judges, join, dissenting, and with whom BYE and RILEY, Circuit Judges, join in part.
This is a garden variety separation of constitutional powers case gone awry. A majority of the judges in regular active service in this circuit employed late blooming, previously unannounced legal concepts, advanced by the government for the first time in its petition for rehearing en banc to vacate the unanimous opinion of the three-judge panel and to create an en banc court. The en banc panel, contrary to existing Supreme Court and circuit precedent, now accepts these new government theories to administer to Tylan Lucas what the court apparently believes are his just desserts for being a bad person and an escaped felon. To reach this result, the court performs a Texas “Sidestep” 12 around clearly established and plainly articulated Fourth Amendment jurisprudence as established in Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) and Shadwick v. City of Tampa, 407 U.S. 345, 92 S.Ct. 2119, 32 L.Ed.2d 783 (1972). From this unjust result, I respectfully dissent.
BACKGROUND
Tylan Lucas was convicted of two felonies by the State of Nebraska in 2000. He was sentenced to prison for each crime. In 2003, in anticipation of his release from incarceration, he was assigned a job in the *790Nebraska Department of Correctional Services’ work-release program. In October of 2003, Lucas walked away from his work-release assignment and an administrative warrant was almost immediately issued for his arrest. Thereafter, Lucas began to reside with Theresa Scaife at her apartment in Omaha.
He was taken into custody within his home13 at 2316 Ogden Street by the Omaha Police Department’s Metro Fugitive Task Force14 on January 4, 2004. He was returned to state control and housed at the Douglas County, (Nebraska) Correctional Center. Evidence gathered at the time of the arrest was later used by the United States to prosecute Lucas for the offenses at issue in this case. This evidence is the subject of the motion to suppress under consideration in this appeal.
The officers used a warrant issued by Harold Clarke, the Director of Correctional Services, an executive officer of the State of Nebraska, to force entry into Lucas’s home without consent. Clarke was statutorily authorized to and did issue the warrant authorizing and directing Lucas’s seizure and return to state custody. Neb. Rev.Stat. § 83-173(11). Accordingly, any commissioned police officer “authorized by law to make arrest[s]” in Nebraska having knowledge of the walk away or being apprised of the contents of Clarke’s warrant, with or without actual use of the administratively issued document, was authorized to arrest Lucas if found on the street or in any other place not affording him a pro-tectable expectation of privacy as defined by the Constitution. But, neither Nebraska statutes and regulations nor Clarke’s administrative arrest warrant purport to authorize or could authorize a nonconsen-sual entry into Lucas’s home to arrest him for a felony or to search for evidence of new federal drug crimes, especially federal crimes for which neither reasonable suspicion nor probable cause existed at the time of entry. Whether or not the warrant authorized Lucas’s return to Nebraska’s custody to serve the remainder of his previously imposed felony sentences or to stand trial for his 2003 felony escape is not at issue here. The plurality opinion authored by Judge Murphy contends that Lucas had signed a “personalized plan” that required him to return to the Omaha Community Corrections Center after work. I find nothing in the record that supports the existence of such an agreement signed by Lucas. But, I find this irrelevant. At all times relevant here, Lucas was chargeable with a Class III felony for the crime of escape when he walked away from work release, with or without an agreement to return. Neb.Rev.Stat. § 28-912(5).
DISCUSSION
I. Waiver
The government argued in the district court that Director Clarke was the “neutral and detached magistrate” required by Payton or, if not, that the police entered Scaife and Lucas’s home by consent. The district court rejected the government’s “consent” argument, which ruling was not appealed, but accepted the government’s *791neutral and detached magistrate contention. On appeal to the three-judge panel, the government renewed its argument that Clarke was the neutral and detached magistrate required by Supreme Court precedent and, if not, that a “good faith” exception applied. The neutral magistrate contention was rejected by the panel, a rejection now conceded by the en banc court to have been correct. This made the good faith issue inapplicable. United States v. Leon, 468 U.S. 897, 914, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984).15
Because it obviously believed that a Payton warrant was necessary to validate Lucas’s arrest and search, the government reasserted its neutral and detached magistrate argument (or an argument that the warrant was close enough to the real thing to do the job) in its en banc papers. Undeterred in its quest to prosecute Lucas for federal drug crimes, the government in its petition for rehearing en banc also raised for the first time two new and different legal theories. First, the government asserted that as an at-large felon, Lucas had a diminished expectation of privacy that permitted the arrest, the residential search and the property seizure notwithstanding the strictures of Payton and Shadwick. The government’s second new theory asserted that the warrant was a valid administrative warrant that obviated the requirements of Payton and Shad-wick altogether.
As noted, the en banc court correctly rejects the neutral and detached magistrate argument. Further, the en banc court accepts and adopts the government’s new legal theories over Lucas’s well-articulated objections that the government waived these arguments by failing to raise them in the first instance. Neither of these government suppositions were presented to nor argued before the three-judge panel.
In Steagald v. United States, 451 U.S. 204, 208, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981), the government was not permitted to assert an “expectation of privacy” argument not raised in a timely fashion. While there are instances in which this circuit has considered issues raised for the first time on appeal, such situations have involved purely legal arguments requiring no additional factual development or requiring an affirmative showing of manifest injustice. Orion Fin. Corp. v. Am. Foods Group, Inc., 281 F.3d 733, 740 (8th Cir.2002). Of course, factual considerations are required to evaluate both of these new*792ly minted legal theories and the issue of manifest injustice, if any, runs toward Lucas and away from the government.
“Arguments and issues raised for the first time on appeal are generally not considered,” especially when “no good reason has been advanced to depart from that rule.” Aaron v. Target Corp., 357 F.3d 768, 779 (8th Cir.2004). The reason advanced by government counsel at oral argument was as follows:
Frankly, I don’t think we anticipated the nature and the scope of the [three-judge] court’s ruling in this matter. And again, I stand by the works of my colleagues and the position of my office, but had I been writing the brief [on appeal], I would have taken a different tack ... and different argument.
This essentially amounts to a confession by the government that they thought they would win with the arguments advanced but when they did not, they needed to assert a new theory in their petition for rehearing en banc.
Likewise, matters raised for the first time in a reply brief on appeal have been routinely and peremptorily rejected by this court. Bearden v. Lemon, 475 F.3d 926, 930 (8th Cir.2007). And, prior to the unusual procedure followed by the en banc court in this case, the precedent of this circuit has been clear. Then Chief Judge Bowman, writing in In re Hen House Interstate, Inc., 177 F.3d 719 (8th Cir.1999), rejected a new assertion made in a petition for rehearing en banc and noted that a “party [first] raising [an] argument on en banc rehearing would ‘be allowed to deprive the panel of the ability to address the issue first.’ ” Id. at 724 (quoting Stupak-Thrall v. United States, 89 F.3d 1269, 1275 n. 4 (6th Cir.1996)). Adapting Justice O’Connor’s statement in Coleman v. Thompson, 501 U.S. 722, 747, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991), to this situation, it may correctly be said that consideration of these new issues for the first time by the en banc court will have the effect of making the district court trial and the three-judge panel’s consideration of the issues asserted in the first appeal merely a “tryout on the road,” léaving open the option of presenting a newly created script when the en banc court becomes the intended audience. Indeed, after intensive computerized research of existing databases, I have been unable to find a single instance in this circuit when an en banc panel has allowed new issues it believed to be controlling to be raised for the first time by the losing party in a petition for rehearing en banc, except, of course, matters of subject matter jurisdiction or Article III standing. Considerable circuit precedent is being extinguished today by this en banc opinion.
II. Arrest
The “physical entry of [Lucas’s] home is the chief evil against which the wording of the Fourth Amendment is directed.” United States v. United States Dist. Ct., 407 U.S. 297, 313, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972). While “[t]he Fourth Amendment protects the individual’s privacy in a variety of settings[,] [i]n none is the zone of privacy more clearly defined than when bounded by the unambiguous physical dimensions of an individual’s home — -a zone that finds its roots in clear and specific constitutional terms: ‘The right of the people to be secure in their ... houses ... shall not be violated.’ ” Payton, 445 U.S. at 589, 100 S.Ct. 1371 (omissions in original). It is this constitutional language that “unequivocally establishes the proposition that ‘[a]t the very core [of the Fourth Amendment] stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.’” Id. at 589-90, 100 S.Ct. 1371 (quoting Silverman v. United States, 365 U.S. 505, 511, 81 S.Ct. 679, 5 L.Ed.2d 734 *793(1961)) (alterations in original). In Pay-ton, the Supreme Court determined that the Fourth Amendment, applied to the states through the Fourteenth Amendment, “prohibits the police from making a warrantless and nonconsensual entry into a suspect’s home in order to make a routine felony arrest.” Id. at 576, 100 S.Ct. 1371. And, a warrant for such purpose or for the purpose of a search for and seizure of property within the home may be issued only by an official who is “neutral and detached” and “capable of determining whether probable cause exists for the requested arrest or search.” Shadwick, 407 U.S. at 350, 92 S.Ct. 2119.
The right of officers to thrust themselves into a home is ... a grave concern, not only to the individual but [also] to a society which chooses to dwell in reasonable security and freedom from surveillance. When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or government enforcement agent.
Johnson v. United States, 333 U.S. 10, 14, 68 S.Ct. 367, 92 L.Ed. 436 (1948) (emphasis added). But, an escaped felon who has been arrested with a defective warrant does not get a free pass; he may be returned to jail and he must still stand trial. Payton, 445 U.S. at 592, n. 34, 100 S.Ct. 1371. However, evidence found and seized during such arrest and entry is subject to an exclusionary rule analysis and may be inadmissible at trial. Id. at 591-92, 100 S.Ct. 1371.
Even though an administrative warrant based specifically upon Lucas’s escape from work release was used to force entry into his home, the government contends in its petition for rehearing en banc that “[t]he [Clarke] warrant was not based on a new criminal charge.” The court en banc appears to join this contention when it says in support of the newly created administrative warrant theory, which theory I will discuss in more detail shortly, “[t]he standard for issuance of a valid administrative warrant under the Fourth Amendment is different from the probable cause showing necessary for a warrant to arrest someone suspected of a crime.” Ante at 776 (emphasis added).
It is more than obvious that the Fourth Amendment prohibited police entry into Lucas’s home if he was not suspected of a crime. It is equally obvious that breaching the privacy of his home to arrest him for a suspected felony required compliance with Payton and Shadwick. However, adherence to these cases did not occur.
The en banc court concedes that the three-judge panel was correct in finding that Clarke’s warrant did not pass muster under Payton. It says
Although Director Clarke’s role in issuing the arrest warrant for Lucas was quite different from the jailer’s issuance of search warrants in [United States v.] Parker, [373 F.3d 770 (6th Cir.2004)], Clarke was not a neutral and detached magistrate in the sense of a judicial officer. He was appointed by the governor, who sat his salary and had power to remove him at will. Neb.Rev.Stat. §§ 81-102, -103.
Ante at 776. To extract themselves from this constitutional dilemma, the government and the court en banc advance this “no new crime” argument, a clearly spurious contention under the facts of this dispute. But, even if correct, it leads them nowhere.
The government and the court do not tightly reason the details of their position. Presumably the contention relies upon a diminished or nonexistent expectation of privacy approach which in some way relates to Lucas’s year 2000 convictions and sentences. In other words, they seem to say that a mantle of criminality carrying with it the evaporation of constitutional protections hovered over Lucas, even in *794his work-release assignment, until his year 2000 sentences had expired. Accordingly, then, they say, it was this continuing vestment of illegality, not his more recent escape felony, that permitted Lucas’s in-home arrest. Of course, neither fact nor precedent support this theory. Indeed, case-based reasoning counsels to the contrary. See Griffin v. Wisconsin, 483 U.S. 868, 873, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987) (“A probationer’s home, like anyone else’s, is protected by the Fourth Amendment’s requirement that searches be ‘reasonable.’ ”); Hudson v. Palmer, 468 U.S. 517, 524, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984) (noting that while imprisonment carries with it the circumscription of some rights “persons imprisoned for crime enjoy many protections of the Constitution”).
First the facts. The “warrant of arrest,” issued by Director Clarke was “for [2003] escaped prisoner” Tylan Lucas. It referred to his underlying convictions and sentences of January and June 2000 and noted that Lucas had been “delivered to the Nebraska Department of Correctional Services on March 1, 2000, [and] has [now] escaped from the custody of the Department.” It further “authorized and directed [the] arrest of said escapee.” (Emphasis added). The escape set forth in the warrant resulted when Lucas failed to return from this work-release assignment to community corrections following temporary leave granted for work release for a limited period. See Neb.Rev.Stat. § 28-912(1). It was this warrant that was used to force a nonconsensual entry into the residence of Theresa Scaife and Lucas at 2316 Ogden Street, Omaha, Nebraska. At that time, Lucas was arrested by Omaha Police Department Task Force officers, as permitted and required by Nebraska law, for escape, a Class III felony and not for unstated continuing obligations arising from his year 2000 sentences or for violation of any work release administrative rules established by Nebraska statutes or duly promulgated agency regulations.16
*795In State v. Coffman, 213 Neb. 560, 330 N.W.2d 727 (1983), the defendant walked away from work release and was arrested and charged under Nebraska statute section 28-912(1). The defendant contended, “cunning[ly]” the court noted, that “work release [was] a form of parole” and that, accordingly, there was insufficient evidence to convict him of the crime of “escape.” Id. at 728-29. The Nebraska Supreme Court, again citing the precise “temporary leave” language set forth above, rejected Coffman’s argument that work release is parole (calling it variously absurd, farcical and frivolous) and said “for the purposes of determining whether one has escaped it is but ‘temporary leave,’ ” id. at 729, as defined in the statute and “when [Coffman] did not return ... he had obviously escaped.” Id. He was properly arrested and charged according to the Nebraska court. Thus, the Nebraska Supreme Court has made clear that Lucas, like Coffman, committed a new felony and was arrested in his home for the offense— with a defective warrant.
Now the precedent. Ignoring that the warrant clearly targeted the commission of the new crime of escape, the government contends, and the en banc court seemingly agrees, that, with or without a warrant, Lucas’s home, because he was a prison escapee, afforded him only a diminished (or non-existent in the view of some) measure of constitutionally protected privacy.17 Lucas, says the government, is a prison escapee from whom the public must be protected.18 Indeed, it says, the government had a duty to apprehend this at-large felon. Both the duty to apprehend and diminished privacy theories have to rely on Lucas being regarded, even in his home, as the “trespasser on society” referred to in dicta in United States v. Roy, 734 F.2d 108, 111 (2d Cir.1984). Roy’s facts reject this long discredited rationale.
Roy involved the search of the passenger compartment and trunk of an automo*796bile, not a home. Id. at 108. Thus, the automobile exception recognized in California v. Carney, 471 U.S. 386, 105 S.Ct. 2066, 85 L.Ed.2d 406 (1985), was clearly in play.
“[T]he guaranty of freedom from unreasonable searches and seizures by the Fourth Amendment has been construed, practically since the beginning of Government, as recognizing a necessary difference between a search of a store, dwelling house or other structure in respect of which a proper official warrant readily may be obtained, and a search of a ship, motor boat, wagon or automobile, for contraband goods, where it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.”
Id. at 390, 105 S.Ct. 2066 (quoting Carroll v. United States, 267 U.S. 132, 153, 45 S.Ct. 280, 69 L.Ed. 543 (1925)) (alteration in original). “The capacity to be ‘quickly moved’ was clearly the basis of the holding in Carroll, and our cases have consistently recognized ready mobility as one of the principal bases of the automobile exception.” Id.
Further, Judge Friendly, concurring in Roy, said
I am not at all convinced that Roy’s Fourth Amendment claims should be dismissed on the ground that, because he had escaped from prison, he had no expectation of privacy “that society is prepared to recognize as ‘reasonable’.” Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring). When Justice Harlan’s much-quoted observation is read in context, it becomes apparent that he was speaking of the places where society would be prepared to recognize an individual's reasonable expectation of privacy, not adumbrating a doctrine whereby certain classes of persons could be denied Fourth Amendment protections that would otherwise extend to them.
Roy, 734 F.2d at 112 (footnote omitted). Hudson, 468 U.S. 517, 104 S.Ct. 3194, 82 L.Ed.2d 393, enlightens this same issue. The Supreme Court noted that “while persons imprisoned for crime enjoy many protections of the Constitution, it is also clear that imprisonment carries with it the circumscription or loss of many significant rights.” Id. at 524, 104 S.Ct. 3194 (emphasis added). The Supreme Court further said:
We have not before been called upon to decide the specific question whether the Fourth Amendment applies within a prison cell, but the nature of our inquiry is well defined. We must determine here, as in other Fourth Amendment contexts, if a “justifiable” expectation of privacy is at stake. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). The applicability of the Fourth Amendment turns on whether “the person invoking its protection can claim a ‘justifiable,’ a ‘reasonable,’ or a ‘legitimate expectation of privacy’ that has been invaded by government action.” Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979), and cases cited. We must decide, in Justice Harlan’s words, whether a prisoner’s expectation of privacy in his prison cell is the kind of expectation that “society is prepared to recognize as ‘reasonable.’ ” Katz, supra, at 360, 361, 88 S.Ct. 507 (concurring opinion).
Id. at 524-25, 104 S.Ct. 3194 (footnotes omitted).19 Thus, while Fourth Amend*797ment rights are personal, United States v. Pierson, 219 F.3d 803, 806 (8th Cir.2000), it is abundantly clear that the expectation of privacy tests applied by the court in the implementation of the Fourth Amendment concern places rather than persons.20 Certainly, Lucas had a constitutionally supported expectation of privacy in his home that he may not have had in his prison cell or in his automobile or while using a telephone booth or a telephone wired to a pen register. Accordingly, Roy is inapposite to the government’s and the en banc court’s expectation of privacy contentions and the court supplies absolutely no precedent to the contrary.
III. Administrative Warrant
With regard to the government and the plurality opinion’s administrative warrant emanations, the court advances ten cases in support of its analysis. With one exception, none involve a home search by a police agency. The one exception is directly contrary to controlling Supreme Court precedent. I will briefly discuss each case.
Abel v. United States, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960), a case that actually supports Lucas, arose out of a non-criminal custodial detention using an administrative warrant issued by the Director of the Immigration and Naturalization Service (INS) as a preliminary to Abel’s deportation as an illegal alien. Id. at 218, 80 S.Ct. 683. Evidentiary “seizures did not occur in connection with the exertion of the criminal process against [Abel].” Id. Abel’s immigration restraint occurred in a New York hotel room by action of INS operatives. Prior to this, the Federal Bureau of Investigation (FBI), the only police agency involved, was informed that Abel was suspected of espionage. The FBI asked permission to interview Abel before any immigration detention. This venture proved unfruitful and the FBI then deferred to INS agents who seized him. After Abel had “agreed to check out of the hotel,” the FBI asked hotel management for permission to search the room, which permission was granted, and a search for evidence to make a criminal case of espionage was undertaken. Id. at 224-25, 80 S.Ct. 683. The Supreme Court emphasized that any administrative search by INS agents was to look for “documentary evidence of alien-age.” Id. at 226-28, 80 S.Ct. 683. Of perhaps even more importance, the Fourth Amendment validity of the administrative warrant was not considered by *798the Court because Abel failed to raise the issue in the lower courts. Id. at 230, 80 S.Ct. 683. In sum, Abel provides little support for any of the en banc court’s rulings.
Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967), also substantively supports Lucas. The case involved an alleged violation of section 503 of the San Francisco (California) Building Code, a “part of a regulatory scheme which [was] essentially civil rather than criminal in nature” according to the California District Court of Appeal. Id. at 528, 87 S.Ct. 1727 (quotation omitted). And, a violation of any part of the Code was but a “misdemeanor.” Id. at 527 n. 2, 87 S.Ct. 1727. But even in these circumstances the Supreme Court required the use of a warrant reviewed and issued by a neutral magistrate, id. at 532, 87 S.Ct. 1727, stating:
“The right of officers to thrust themselves into a home is also a grave concern, not only to the individual but to a society which chooses to dwell in reasonable security and freedom from surveillance. When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or government enforcement agent.”
Id. at 529, 87 S.Ct. 1727 (quoting Johnson v. United States, 333 U.S. 10, 14, 68 S.Ct. 367, 92 L.Ed. 436 (1948)). The Court further said, “[i]t is surely anomalous to say that the individual and his private property are fully protected by the Fourth Amendment only when the individual is suspected of criminal behavior,” id. at 530, 87 S.Ct. 1727 (footnote omitted), and that even the most law-abiding citizen has an interest in preventing entry into his home without a warrant, even for civil purposes. Id. at 530-31, 87 S.Ct. 1727.
The en bane court substantively ignores the principal thrust of Henderson v. Simms, 223 F.3d 267 (4th Cir.2000), a “qualified immunity” case that presents none of the issues at large in this case. Henderson is a 42 U.S.C. § 1983 case in which three validly released inmates who were subject to “ ‘mandatory supervision,’ a release status similar to parole,” id. at 269, were mistakenly reincarcerated for a number of days through use of administrative retake warrants authorized by Maryland law. The inmates sued individual state officers alleging violation of the Fourth and Fourteenth Amendments. While the Fourth Circuit stated that a few days of “reincarceration” using a retake warrant based upon findings specifically delineated by Maryland statute did not violate the Fourth Amendment, the court also opined at length that if it did, the court was “convinced that [the Fourth Amendment] rights were not clearly established at the time of the seizures.” Id. at 273. This case offers exceedingly thin gruel as nourishment for the en banc court’s Fourth Amendment emanations.
In United States v. Cardona, 903 F.2d 60 (1st Cir.1990), which the two-judge majority characterized as “Griffin Redux,” the First Circuit validated a police search of Cardona’s Rhode Island residence through the use of a parole violation warrant issued by the New York parole board. But, as noted by the Cardona dissent, “the majority distorts both the substance and method of [F]ourth [A]mendment jurisprudence.” Id. at 69 (Bownes, J., dissenting). This, according to the dissent, is because the Cardona court strains to extend Griffin’s “ ‘special needs’ exception from searches by parole administrators to seizures by police officers, a situation clearly not covered, and arguably forbidden, by the language of Griffin.” Id. The dissent is clearly correct that Griffin is restricted to administrator’s arrests and searches based upon detailed and pervasive regulations put in place by state statute and *799court order. Thus, Cardona is irrelevant to Lucas’s situation.
The warrantless search in United States v. Knights, 534 U.S. 112, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001), was specifically consented to through a signed agreement arising from a court order granting probation, id. at 114, 122 S.Ct. 587, and in Samson v. California, — U.S. —126 S.Ct. 2193, 165 L.Ed.2d 250 (2006), the parolee was searched and seized while walking on the street, not in his home. And while the en banc court cites these two cases for the proposition that “an escapee from lawful custody [has] an even more circumscribed expectation of privacy than [probationers] and [parolees],” such words or inferences appear in neither of the opinions and as applied to this case are palpably incorrect. Likewise, the court’s statement that Rakas v. Illinois, 439 U.S. 128, 143 n. 12, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), stands for “a minimal expectation of privacy” for Lucas at his home is not supported by the cited footnote. Indeed, a full examination of the note establishes a contrary proposition.
Marshall v. Barlow’s, Inc., 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978), an Occupational Safety and Health Act (OSHA) regulation case cited by the court, notes that a lower standard for the issuance of an administrative warrant stems from “relatively unique circumstances” involving certain industries with “such a history of government oversight that no reasonable expectation of privacy could exist” for the owner of the business. Id. at 313, 98 S.Ct. 1816 (citation omitted). But, the Supreme Court has specifically noted that the Camara-Marshall definition of administrative probable cause is not “[p]robable cause in the criminal law sense.” Id. at 320, 98 S.Ct. 1816. Indeed, when “seeking evidence to be used in a criminal prosecution, the usual standard [of probable cause] will apply.” Michigan v. Tyler, 436 U.S. 499, 508, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978) (alteration in original) (quotation omitted).
Griffin v. Wisconsin, 483 U.S. 868, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987), comes closest to supporting the en banc court’s administrative warrant position. But, in the final analysis, it is inapplicable to Lucas’s situation.
Joseph Griffin, a probationer, had his home searched without a warrant. The supervisor of Griffin’s probation officer received a tip that Griffin’s apartment might contain contraband. Based upon this information, he authorized Griffin’s probation officer to conduct a search of Griffin’s home, in which the supervisor participated.
Wisconsin law puts probationers in the legal custody of the State Department of Health and Social Services and renders them “subject ... to ... conditions set by the court and rules and regulations established by the department.” Wis. Stat. § 973.10(1) (1985-1986). One of the Department’s regulations permits any probation officer to search a probationer’s home without a warrant as long as his supervisor approves and as long as there are “reasonable grounds” to believe the presence of contraband.
Id. at 870-71, 107 S.Ct. 3164 (omission in original). To protect the probationer’s Fourth Amendment rights, “[t]he rule provides that an officer should consider a variety of factors in determining whether ‘reasonable [constitutional] grounds exist’ ” to search. Id. at 871, 107 S.Ct. 3164.
Justice Scalia writing for a five-member Court in Griffin, noted that a state’s operation of a probation system or other possible plans, including, specifically, a work-release program, present “ ‘special needs’ beyond normal law enforcement” activities, id. at 873-74, 107 S.Ct. 3164, because they are “a form of criminal sanction imposed by a court upon an offender after verdict, finding, or plea of guilty.” Id. at 874, 107 S.Ct. 3164 (quotation omitted). *800However, “[a] probationer’s [and a work release walk away’s] home, like anyone else’s, is protected by the Fourth Amendment’s requirement that searches be ‘reasonable.’ ” Id. at 873, 107 S.Ct. 3164. It is important to note that in Griffin, the Wisconsin Supreme Court allowed a search of the probationer’s home “because [Griffin’s] probation diminishes [his] reasonable expectation of privacy.” Id. at 872, 107 S.Ct. 3164. Upon review by the United States Supreme Court, this “new principle of law” adopted by the Wisconsin court was pointedly not “embraeefd].” Id. Accordingly, these “special needs” beyond the normal need for law enforcement are employable only when “the [usual] warrant and probable-cause requirement[s][are] impracticable.” Id. at 873, 107 S.Ct. 3164 (quotation omitted). Additionally, it seems certain that there must be in place, as in Wisconsin, a state-enacted regulatory scheme that satisfies the Fourth Amendment’s reasonableness requirements and the entry, detention and search must be carried out entirely by administrative officers under the authority of the state’s regulations. See id. at 873-75, 107 S.Ct. 3164.
While the direct facts of Griffin encompass a probationer (as opposed to a work release walk away) and a residential search for contraband (as opposed to a residential arrest and search incident thereto), there is little doubt, even giving the government and the court en banc the case’s best gloss, that Griffin establishes legal principles fully applicable to Lucas. Thus, the following analysis controls the outcome of this case. The usual warrant and probable cause requirements were fully practical. There was nothing that prohibited the securing of the Ogden Street residence while a judicial officer was consulted. The probation supervisor’s approval of the probation officer’s search can probably be considered a reasonable substitute for Director Clarke’s administrative warrant. The supervisor’s approval was directed to an agency employee (the searching probation officer) but Director Clarke’s directions were addressed only to police personnel authorized by law to make arrests. The supervisor’s approval was based upon a finding of reasonable grounds to believe that there was contraband in Griffin’s home but Clarke’s warrant was based upon a finding that Lucas “had escaped from ... custody,” not that he could or would be found at his home. However, I concede that the Omaha police officers developed reasonable suspicion that he was at his home on Ogden Street. The Griffin supervisor’s actions were based upon Wisconsin’s comprehensive administrative rules regime. But, there is no showing in the record that Nebraska has any administrative agency procedures that are at all comparable to the Wisconsin scheme. Indeed, a search of the record and research beyond the record reveals a contrary environment.21 The Wisconsin *801approval and search was undertaken and completed by state probation officers but Lucas was arrested in his home by agents of an Omaha Police Department task force, not Department of Corrections employees, and through use of a warrant defective under Payton.
Finally, and most importantly, the Nebraska legislature has affirmatively deemed escape a Class III felony rather than an administrative rules violation, and, as interpreted by State v. Coffman, has made Lucas’s arrest an apprehension for a “routine felony” requiring a warrant that passes constitutional muster under Pay-ton. Accordingly, the evidence seized in Lucas’s home must be suppressed.
IV. Theresa Scaife
The court’s rhetoric that Lucas has no standing “to assert Scaife’s Fourth Amendment” rights is beside the point. The record establishes that the intruding police officers were ultimately concerned with Scaife’s connection with drugs found in her coat in the residence and with a weapon found under the mattress of the only bed in the premises. Except for the limited “non-prosecution” agreement she has with the United States, Appendix at 21, she, too, is at risk of prosecution for state and federal drug crimes, especially, for instance, for possession or conspiracy to possess illegal drugs for her own use, if not for distribution.
At the time Scaife refused to give the police permission to enter, she was not suspected of committing a crime nor was she on parole, probation or in an escape status. Nonetheless, if the fruits of this search are declared valid, Scaife and many other similarly situated individuals in this circuit who share an abode with an alien, OSHA or housing code violator, parolee, probationer or escapee, will have little if any basis to exclude evidence in a criminal prosecution. See Georgia v. Randolph, 547 U.S. 103, 126 S.Ct. 1515, 164 L.Ed.2d 208 (2006) (physically present eo-occu-pant’s refusal to permit entry makes search unreasonable as to him); United States v. Davis, 932 F.2d 752 (9th Cir.1991) (non-probationer co-occupant cannot suppress evidence found in jointly used portions of residence, with or without inquiry as to ownership by police).
CONCLUSION
The police arrived at the home of Theresa Scaife and Tylan Lucas and used an administrative arrest warrant that con-cededly did not pass Payton v. New York constitutional muster to enter, arrest and search Lucas. The court, acting upon new theories advanced in the petition for rehearing en banc, finds these acts to be constitutional.
In doing so, the court offers a series of inapposite and distinguishable cases supposedly authorizing this entry because the administrative warrant was constitutionally sufficient or because Lucas had a limited expectation of privacy in his home as a result of his escape status. This is error.
Lucas is not a model citizen. And it is almost certain that a valid warrant would have been issued by a neutral and de*802tached magistrate, if requested, making the requirement seem but a technicality. Nonetheless, even escapees have the right to expect the benefits of the rule of law. These benefits were denied him by the Omaha Police Department and are being denied him by the court en banc today. The evidence at issue should be suppressed.
I dissent.
APPENDIX A
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. This is the dance routine dramatizing the Texas Governor's reluctance to follow existing law as made famous in the 1978 Broadway play The Best Little Whorehouse in Texas. Scott Cain, Cincinnati: The Best Little Whorehouse in Texas, http://www. talkinbroadway. com/regional/cincylcincyl9.html.
. The evidence indicates that Lucas lived at this address with Scaife and the Omaha Police considered it his “primary residence.” Officer Carmody, an Omaha Police Sergeant, testified that the Omaha Police consider a place where a person is believed to be residing a primary residence. The government has not disputed that this Ogden Street primary residence was Lucas's home at all times relevant to this litigation.
. The Task Force is a multi-agency task force encompassing the United States Marshals Service, the Douglas County Sheriffs Office, the Omaha Police Department, the Nebraska State Patrol and the Council Bluffs Police Department.
. Judge Bye in his dissent and concurrence takes exception to my contention that a good faith exception under Leon is inapplicable in this case. He cites Illinois v. Krull, 480 U.S. 340, 107 S.Ct. 1160, 94 L.Ed.2d 364 (1987), in support of his contrary view. I agree with almost every part of Judge Bye’s discussion of Knill. I disagree only with his conclusion that Knill somehow opens the door to a determination that the evidence at issue in this case is admissible under the teachings of Leon. As Judge Bye appears to concede in footnote 11 of his dissent and concurrence, the Supreme Court requires that when the police enter a private residence, a Leon-qualifying warrant must be issued by a "neutral magistrate" to “provide[ ] the detached scrutiny” necessary to accord "a more reliable safeguard against improper searches than the hurried judgment of a law enforcement officer engaged in the often competitive enterprise of ferreting out crime.” Leon, 468 U.S. at 913-14, 104 S.Ct. 3405 (quotation omitted). There was no such warrant here. Third, as also seemingly conceded by Judge Bye, Nebraska Revised Statute § 83-173 as applied in this case is unconstitutional. And, as Knill suggests, the proper deterrent in such a situation is for the court to invalidate the statute— the greatest deterrent to enactment of an unconstitutional statute is the power of the court to invalidate because invalidation informs the legislature of its constitutional error and affects admissibility of subsequently obtained evidence. Knill, 480 U.S. at 352-53, 107 S.Ct. 1160. Thus, at the bottom line, Knill is clearly not the pathway to a Leon good faith exception in this case.
. In footnote 4, ante at 776, the plurality opinion concedes, at least by implication, that its several conclusions are erroneous if Tylan Lucas was arrested for a felony at 2316 Ogden Street in Omaha. Although it makes no real difference as I point out below, to dispel the erroneous contention that the administrative warrant was issued only to "retake” Lucas, I attach a copy of the document to this dissent as Appendix A. To buttress its arrest arguments, the plurality appears to contend that the words "arrest” and "retake” have different meanings in this dispute. At best, this finding is an act of semantic legerdemain, that is, it advances a difference without a distinction to reach a predetermined result while steadfastly resisting the application of clearly established Fourth Amendment law. And, unfortunately, Judge Shepherd's concurrence seems also to incorporate elements of this same fiction. United States v. Sager, 881 F.2d 364 (7th Cir.1989), addresses this point. Sager, a parolee, contended that as such he could not be subject to an “arrest warrant.” Id. at 366. Although the parole statute, 18 U.S.C. §§ 4201 et seq., referred to by the Sager court has been repealed effective November 2005, as a result of the Sentencing Reform Act of 1984, the Seventh Circuit correctly analyzes the issue for our purposes:
In support of his position, Mr. Sager invites our attention to the statutory language. The statute dealing with parole violations, 18 U.S.C. § 4213, empowers the Parole Commission to "issue a warrant and retake the parolee.” 18 U.S.C. § 4213(a)(2) (emphasis added). By contrast, Rule 4, dealing with the apprehension of a person wanted to answer a criminal charge, employs the word "arrest.” Fed.R.Crim.P. 4. Similarly, 18 U.S.C. § 3606, dealing with the apprehension of probation violators and those on supervised release, speaks in terms of "arrest.” Therefore, Mr. Sager argues, section 1071 is not applicable because there was no outstanding arrest warrant for Carlos Aubrey at the time Mr. Sager allegedly concealed him.
Id. at 365 (footnote omitted).
The Seventh Circuit then said:
While it is true that a parolee is "in custody,” it is also true that he retains a legally cognizable liberty interest that is significantly greater than that enjoyed by *795one who is incarcerated. See Morrissey v. Brewer, 408 U.S. 471, 482, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). To deprive him of that liberty interest and place him in a custodial status is indeed to arrest him, as that term is usually understood. We must assume that Congress intended the term to be given such a common-sense meaning. Certainly, this conclusion is not undercut simply because Congress did not use the term "arrest" in section 4213 when it was dealing exclusively with the process of parole revocation. There, without unnecessarily limiting the ambit of the section, Congress was able to employ the more descriptive phrase "retake.” However, even in that section, Congress manifested, in the later subsections of section 4213, its understanding that the execution of a "warrant to retake” effectuates an "arrest.” The physical deprivation of liberty described in subsection (d) certainly constitutes a sufficient deprivation of liberty to constitute an "arrest.” Indeed, the Parole Board and other courts of appeals have characterized this event as an arrest.
Id. at 366-37 (footnotes omitted).
Tylan Lucas, as a work-release assignee, even in escapee status, had a "legally cognizable liberty interest that is significantly greater than that enjoyed by one who is [confined within a prison] incarcerated.” Id. at, 366. This is especially true because he is now being confined, at least in large part, for prosecution for a new federal drug crime on the basis of the unconstitutionally gathered evidence, not for his year 2000 offenses or for the crime of escape.
. The plurality opinion says "[a]s an escapee Lucas had only a minimal expectation of privacy in Scaife's apartment.” Ante at 777. See also Judge Shepherd’s concurrence.
. In footnote 5, ante at 779, the plurality opinion and Judge Shepherd, in apparent agreement, contend that the “government has never claimed that Lucas had a reasonable expectation of privacy in Scaife’s apartment.” As carefully and correctly noted by Judge Bye in his dissent and concurrence, the record clearly demonstrates the inaccuracy of this statement.
. While the Supreme Court in Hudson found no expectation of privacy inside the prison cell, the Court has not addressed the Fourth Amendment rights of prisoners outside the cell, even while in an incarcerated status. See Thompson v. Souza, 111 F.3d 694, 699 (9th Cir.1997) ("The Supreme Court has not decided whether prison inmates retain rights *797cognizable under the Fourth Amendment.”). The Ninth Circuit has determined that incarcerated prisoners do have some Fourth Amendment protections, dependent upon the prison context. Michenfelder v. Sumner, 860 F.2d 328 (9th Cir.1988) (examining reasonableness of strip search under Fourth Amendment). Likewise, other circuits have made similar holdings. See Peckham v. Wisconsin Dep’t of Corr., 141 F.3d 694, 697 (7th Cir. 1998) (incarcerated prisoners do enjoy some Fourth Amendment protections against strip searches); Franklin v. Lockhart, 883 F.2d 654, 655-56 (8th Cir.1989) (same). The considerations of the Supreme Court in Hudson involved the confinement of individuals guilty of antisocial criminal and violent conduct, the prevention of the introduction of drugs into the premises, the ability of inmates to conceal contraband in their cells, and the need to maintain a sanitary environment. However, none of these concerns apply to individuals who are free to come and go on work release assignments. Indeed, none apply outside the prison yard.
. For example, see California v. Carney, 471 U.S. 386, 105 S.Ct. 2066, 85 L.Ed.2d 406 (1985) (automobile); Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984) (prison cell); Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) (home); Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979) (pen register); Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (telephone booth).
. Griffin stresses the completeness of Wisconsin's probation scheme as promulgated by statute and regulation. The statutory and regulatory scheme under-pinning Nebraska's work-release program is not comparable. Nebraska Revised Statute § 83-183(1) provides that individuals in custody of the Department of Correctional Services should be put into the work force to aid their rehabilitation. The same statute requires that the Director of the Department of Correctional Services “shall make rules and regulations governing the hours, conditions of labor, and the rates of compensation of persons committed to the department.” Neb.Rev.Stat. § 83-183(2). Generally, "[i]t is the Department’s policy to provide ... employment programs to those inmates who are in need of such ... programs.” 68 Neb. Admin. Code Ch. 7, § 002 (2007). Other than this general statement, the Nebraska Administrative Code's chapter for the Department of Correctional Services is silent on the administration of work release. However, more detailed regulations may be found at http:// www.corrections.state.ne.us/policies/index. *801html. These administrative regulations, promulgated by the Director of the Department of Correctional Services, contain various provisions regarding the criteria and approval process for participation in work-release programs, universal job requirements, worker job descriptions, pay scales, performance evaluation, job termination, overtime, and even excused and non-excused absences. See Nebraska Department of Correctional Services Administrative Regulations 109.01, 113.18, 201.07, and 209.02. However, as far as I have found, these regulations contain nothing similar to those of Wisconsin regarding authority to "arrest,” “retake” or search within the home of a prisoner who walks away from his work-release job.