with whom O’SCANNLAIN, KLEINFELD, GOULD, TALLMAN, BYBEE, and BEA, Circuit Judges, join, dissenting from denial of rehearing en banc:
The panel majority holds that a person arrested for drug offenses may not as a condition of pretrial release consent to searches for drugs on the basis of reasonable suspicion rather than probable cause. The majority’s groundbreaking opinion misconceives the reality of pretrial release and the applicable constitutional principles, and substantially undermines and seriously burdens pretrial-release proceedings in the nine states covered by our circuit. I cannot endorse this flawed approach.
The majority’s opinion is built on two false pillars. First, the majority asserts that defendants released pending trial *890“have suffered no judicial abridgment of their constitutional rights.” Am. Op. at 872.1 While one might quibble over whether there is a “judicial” abridgment, the reality is that there is an abridgment and a court is involved. When a person is arrested, his constitutional rights are naturally abridged; the arrest is followed by a judicial determination as to the extent to which his rights may be abridged. A court determines whether he is entitled to pretrial release or may be held without bail.
Second, the majority’s opinion posits that the presumption of innocence is applicable to the determination concerning pretrial release. Id. at 874. This is true only in the broad sense that all participants recognize that to obtain a conviction, the prosecution will have to overcome this presumption by proving guilt beyond a reasonable doubt. But the Supreme Court has held that the presumption plays no role in a trial court’s determination of what conditions, if any, will permit a defendant’s pretrial release. Bell v. Wolfish, 441 U.S. 520, 533, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). In other words, a trial court may presume the validity of the criminal charges against the defendant at this initial step in the criminal proceedings.
Once these misconceptions are realized, there is little weight to the majority’s arguments for an elevated showing of special need or for holding that the defendant is constitutionally barred from consenting to a drug search on the basis of reasonable suspicion.
I.
Nevada police arrested the defendant for possession of methamphetamine and drug paraphernalia. A few days later, he appeared before a state judge, who held a hearing and released the defendant on his own recognizance, subject to the defendant’s consent to several conditions of pretrial release. On a preprinted release form, the state judge checked some of the conditions on the form, allowing for the warrantless testing of the defendant for drug use as well as the warrantless search of his home for drugs during his period of pretrial release. The defendant understood and consented to these conditions. He also agreed not to possess a firearm.
Shortly after his release, a supervision officer received a tip that the defendant was in possession of a handgun, a sawed-off shotgun, and drug paraphernalia specific to the manufacture of methamphetamine. Officers went to the defendant’s home to conduct a compliance visit and the defendant invited them inside upon their arrival. The defendant submitted a urine sample indicating that he had been using methamphetamine, at which point he was handcuffed and asked whether he had any weapons. He admitted to having “several toy guns” and, when asked where these toy guns were, he gestured to the television set in the room. When looking at the television set, one of the officers immediately spotted a nylon holster that had a gun in it with both the grip and the barrel sticking out. It was a sawed-off shotgun.
The defendant was charged in federal court for possessing a shotgun, and he moved to suppress the shotgun and the statements he had made to the officers. The government argued that the officers reasonably suspected that the defendant was breaching his pretrial-release conditions. The district court granted the suppression motion, concluding that probable cause was needed to search the defen*891dant’s home. Finding that the officers lacked probable cause, the court held the search unreasonable in violation of the Fourth Amendment. The government then brought this interlocutory appeal.
II.
The panel majority recognizes that this case presents “an issue of first impression in any federal circuit and the vast majority of state courts.” Am. Op. at 864. This may be because it is well established that trial courts have considerable discretion to place a defendant on pretrial release with reasonable conditions that (1) further the State’s interest in protecting the community from the harms inherent in the charged criminal activity and (2) ensure the defendant’s appearance in the subsequent judicial proceedings. The panel majority supports its decision by arguing that pretrial releasees have suffered “no judicial abridgment of their constitutional rights.” Id. at 872. The panel majority’s reasoning cannot be reconciled with cases holding that individuals charged with crimes but freed on pretrial release have a lesser expectation of privacy than the ordinary citizen, thereby allowing the imposition of reasonable pretrial-release conditions. See, e.g., State v. Ullring, 741 A.2d 1065, 1069 n. 3, 1073 (Me.1999) (concluding that probable cause is not required to search the home of a pretrial releasee accused of drug offenses); In re York, 9 Cal.4th 1133, 40 Cal.Rptr.2d 308, 892 P.2d 804, 813 (1995). The Supreme Court has similarly held that a pretrial releasee is considered in some ways to be in custody. See Hensley v. Mun. Ct., 411 U.S. 345, 349, 93 S.Ct. 1571, 36 L.Ed.2d 294 (1973) (noting that “a substantial number of courts, perhaps a majority, have concluded that a person released on bail or on his own recognizance may be ‘in custody’ ” and this line of cases “reflects the sounder view”).
The concept that a pretrial releasee has a diminished expectation of privacy from that of an ordinary citizen is magnified by the fact that a pretrial releasee is saddled with greater burdens and is “scarcely at libertyf.]” Albright v. Oliver, 510 U.S. 266, 279, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994) (Ginsburg, J., concurring). This concept of lessened constitutional demands in the unique context of pretrial release makes a great deal of sense. For instance, unlike the ordinary citizen, a pretrial re-leasee must appear in court at the state’s command and “seek formal permission from the court ... before exercising what would otherwise be his unquestioned right to travel outside the jurisdiction.” Id. at 278, 114 S.Ct. 807.
One of the most solid pronouncements of the diminished-expectation standard comes from a unanimous decision by the California Supreme Court in York. There, a state magistrate judge asked a set of defendants who were charged with drug felonies to choose between remaining in custody pending trial or obtaining pretrial release based on conditions that included a requirement that they “[sjubmit 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.” 40 Cal.Rptr.2d 308, 892 P.2d at 806 (alterations in original) (internal quotation marks omitted). The core argument presented by the defendants in York — that the Fourth Amendment is violated by the imposition of warrantless drug-testing and search conditions on pretrial releasees — mirrors the argument made by the defendant here. The California Supreme Court rejected this claim on the ground that pretrial re-leasees lack “the same reasonable expectation of privacy as that enjoyed by persons not charged with any crime[.]” Id. 40 Cal.Rptr.2d 308, 892 P.2d at 813. The court reasoned that such individuals have “no constitutional right to be free from confinement prior to trial and therefore *892lack[ ] the reasonable expectation of privacy possessed by a person unfettered by such confinement.” Id. The court further explained that “an incarcerated individual generally is subject to random drug testing and warrantless search and seizure in the interest of prison security” and that the subject conditions “do not place greater restrictions [on a] releasee’s privacy rights than the releasee would have experienced had he or she not secured [] release.” Id.
Unlike the panel majority in our case, the York court dismissed the notion that the challenged conditions impermissibly required a defendant to consensually “waive” any Fourth Amendment right that he may have otherwise retained had pretrial release been denied.2 Id. 40 Cal.Rptr.2d 308, 892 P.2d at 811. The court noted that “the conditions simply define the degree of liberty that the court or magistrate, in his or her discretion, has determined is appropriate to grant to the [] releasee.” Id. 40 Cal.Rptr.2d 308, 892 P.2d at 813. Nonetheless, the court recognized that such conditions should be reasonably limited based on “the relationship of the condition to the crime or crimes with which the defendant is charged[.]” Id. 40 Cal.Rptr.2d 308, 892 P.2d at 815 n. 10. Finding the search and drug-testing conditions reasonable because they “clearly relate to the prevention and detection of further crime and thus to the safety of the public[,]” the court held that such warrant-less searches and random drug testing do not violate the Fourth Amendment. Id. 40 Cal.Rptr.2d 308, 892 P.2d at 810.
The panel majority’s failure to accept the State’s expressed interests is particularly troubling in this case, where drugs are directly at issue and the authorities supervising the defendant’s pretrial release “must be able to act based upon 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 v. Wisconsin, 483 U.S. 868, 879, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987). The record shows that the defendant was arrested, inter alia, for felony drug-possession and the supervising authorities, pursuant to release conditions that defendant had agreed to follow, searched his home because the circumstances gave rise to a reasonable suspicion that he possessed drug paraphernalia and other contraband. Even assuming that the State had a lesser interest because the defendant had not been convicted, it does not follow that the State retained no interest in intervening before the defendant did “damage to himself or society.” Id.
It is therefore apparent that the panel majority’s new probable-cause rule fails the “touchstone” of Fourth Amendment analysis, which “is always ‘the reasonableness in all the circumstances of the particular governmental invasion[.]’ ” Pennsylvania v. Mimms, 434 U.S. 106, 108-09, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977) (quoting *893Terry v. Ohio, 892 U.S. 1, 19, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)) (emphasis added). The panel majority should have examined the circumstances applicable to the defendant’s pretrial release and then weighed the legitimate interests of the State against the defendant’s privacy interests. Under the prescribed approach, the searches that took place in this case were constitutionally reasonable.
Moreover, the panel majority fails to heed the Supreme Court’s recognition that the State’s “interest in preventing crime by arrestees is both legitimate and compelling.” United States v. Salerno, 481 U.S. 739, 749, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987); see also Speight v. United States, 569 A.2d 124, 126-27 (D.C.1989) (highlighting Congress’s concern with the increasing level of crimes committed by defendants on pretrial release). The panel majority claims to accept that community protection is a compelling interest, but then brushes it aside by calling crime prevention “the exact opposite of a special need.” Am. Op. at 870. This is confusing. As Judge By-bee reasons in his dissent, “[t]he majority’s point might be well taken if the courts were authorizing random searches of the general population.” Revised Dissent at 884. But there is no claim that such random searches are occurring. In fact, what the State permitted was a search of a specific individual, who has been charged with the violation of state drug laws and who had specifically consented to the search for drugs. He had the option of sleeping on a springboard cot in a cold jail cell or choosing to be surrounded by the comforts of his own home while the judicial proceedings against him moved forward. The latter choice came with some strings that were irrefutably related to the State’s interest in preventing “more criminal activity by him after he is released[,]” Nev. Rev. Stat. § 178.4853(9), but neither his choice nor these strings necessarily raise any constitutional problem.
The panel majority amends its original opinion in an attempt to clarify that a trial judge must make some kind of specific finding or “individualized determination” that certain search conditions are necessary for a defendant in order to make sure that he shows up for trial and to protect the community from further crimes. But this ignores the fact that an individualized determination was made.3 The defendant here had already been arrested on probable cause for committing various drug offenses when he went before the state judge. Thus, there was a specific need to prevent this defendant from continuing to use drugs if he was to be released into the general population. It is plain to see that the specialized findings the majority appears to contemplate have already been made.4
III.
The majority’s conclusion that “the assumption that [the defendant] was more likely to commit crimes than other members of the public ... is contradicted by *894the presumption of innocence” is breathtaking and cannot be reconciled with reality or existing case law. Am. Op. at 873-74. The Supreme Court has rejected this rationale:
The presumption of innocence is a doctrine that allocates the burden of proof in criminal trials; it also may serve as an admonishment to the jury to judge an accused’s guilt or innocence solely on the evidence adduced at trial.... But it has no application to a determination of the rights of a pretrial detainee during confinement before his trial has even begun.
Bell v. Wolfish, 441 U.S. 520, 533, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979) (emphasis added) (internal citations omitted).
Other courts and Congress have also rejected the panel majority’s presumption-of-innocence argument by treating charged individuals differently than the ordinary citizen. See, e.g., 18 U.S.C. § 922(n) (punishing indicted defendants who receive or ship firearms in interstate commerce); 18 U.S.C. § 3577, subsequently renumbered as 18 U.S.C. § 3661 (imposing penalties by allowing consideration of prior arrests); United States v. Craven, 478 F.2d 1329, 1339 (6th Cir.1973) (deeming “eminently reasonable” a federal statutory classification that punishes indicted persons because the fact of a felony indictment is “so often indicative of a propensity for violence”); Speight, 569 A.2d at 128-29 (determining that a local statute’s imposition of greater punishment for crimes committed by pretrial releasees as opposed to ordinary citizens does not violate the presumption of innocence). Even the Federal Rules of Evidence are contrary to the panel majority’s presumption-of-innocence rationale. See Fed. R. Evid. 404(b) (rendering evidence of other arrests admissible for the purpose of proving motive or intent). Accordingly, as noted by the Supreme Court, it is important to recognize that “[t]he government’s interest in preventing crime by arrestees is both legitimate and compelling.”5 Salerno, 481 U.S. at 749, 107 S.Ct. 2095.
*895IV.
The majority’s discussion of “special needs” and “totality of the circumstances” fails to acknowledge that each judicial hearing on conditions of pretrial release is tailored to the individual defendant. The majority apparently does not believe the link between drug use and the risk of nonappearance is “obvious” because “the Nevada legislature has not taken the categorical position that drug use among pretrial releasees substantially impairs their tendency to show up in courtf.]” Am. Op. at 870-71 & n. 7.
While it may be true that the relevant state statute lacks such a specific pronouncement, it is not clear why the majority thinks such a pronouncement is necessary. As a federal court, we should be cautious to impose such conditions on a state legislature, especially where it was entirely reasonable for the state judge in this drug case to determine that a condition prohibiting alcohol and drug use was necessary to protect the public and secure the defendant’s appearance in further proceedings.6 Why is anything more necessary when, as here, the conditions allowing for random drug testing and searches were rationally related to the State’s interests in protecting its citizens and assuring the defendant’s presence at trial? This unanswerable question signals the error in the majority’s reasoning.
Furthermore, the premise that drug use creates a tendency for non-appearance is sound. Congress has determined that it is perfectly reasonable to assume that individuals arrested on drug charges pose a greater risk of non-appearance at trial.7 In addition, the First Circuit has recognized and listed the “considerable evidence that drug offenders pose[ ] a special risk of ‘flight[.]’ ” United States v. Jessup, 757 F.2d 378, 385 (1st Cir.1985), abrogated on other grounds by United States v. O’Brien, 895 F.2d 810 (1st Cir.1990). Citing from the record of Congress’s Bail Reform Hearings held in 1981, the First Circuit observed that drug offenders account for about one-sixth of all crimes charged but about one-half of all bail jumpers. Jessup, 757 F.2d at 385. That court went on to note that a study conducted by the Administrative Office of the United States Courts revealed that about one-third of the defendants who do not appear for their pretrial hearings are charged with narcotics viola*896tions. Id. at 397-98. In sum, there is every reason to conclude that the search conditions imposed on the defendant in the instant case were reasonably calculated to assure his appearance at trial and protect the community from the repetition of the alleged narcotics crimes.8
y.
The panel majority does not quarrel with the fact that the defendant’s signed pretrial-release agreement clearly expressed and unambiguously informed the defendant of the search conditions. In assessing the constitutionality of the drug test and the search of the defendant’s residence, however, the panel majority minimizes the importance of the defendant’s consent.
The panel majority calls the defendant’s consent an “unconstitutional condition” whereby the government may not require a person to give up a constitutional right in exchange for a discretionary benefit conferred by the government where the benefit sought has little or no relationship to the right at issue. Id. at 865-67. There are two readily perceived problems with this line of reasoning. First, as Judge Bybee notes in his dissent, no court has ever suggested that Fourth Amendment rights cannot be temporarily limited by agreement, at least not when the agreement is rationally related to changes in the individual’s legal status. See Wyman v. James, 400 U.S. 309, 326, 91 S.Ct. 381, 27 L.Ed.2d 408 (1971) (allowing the conditioning of family-welfare payments on the recipient’s submission to warrantless searches of her home).
Second, defining a defendant’s consent to conditions of pretrial release as the panel majority has done detracts from the real import for the unconstitutional-conditions doctrine. As the government notes in its petition for rehearing, the doctrine would apply, for example, where the State qualifies an accused’s pretrial release on his agreement to forgo his First Amendment right to make public statements criticizing the government. There, the limitation of a constitutional right is not related to a state’s legitimate interest in conditioning pretrial release. Here, the defendant was arrested on probable cause for possessing controlled substances and drug paraphernalia and was then released on his agreement to refrain from committing similar offenses and agreeing to drug testing and the warrantless search of his premises specifically for drug contraband. A search condition designed to assess the defendant’s compliance with another condition of his release may be reasonably related to the benefit offered by the government as a quid pro quo and thereby not run afoul of the doctrine.
The question here is not whether all pretrial releasees must agree to all searches. Rather, we have a defendant who has been charged with drug offenses and who has agreed to searches limited to drug and alcohol use on the basis of reasonable suspicion rather than requiring a warrant based on probable cause. Why is this not a reasonable bargain for being released on personal recognizance?9
*897VI.
Finally, I am deeply concerned that the panel’s novel approach has effectively revoked important pretrial-release procedures throughout our circuit and has created many uncertainties to bedevil the state and federal trial courts. Judge Bybee’s list of states that have pretrial rules similar to the one at issue here dispels any uncertainty about the considerable impact of the panel majority’s opinion.10 Revised Dissent at 887-88. In fact, every state in our circuit, from Arizona to Alaska, has a similar rule. Id. at 887-88. The federal government is also impacted — despite the majority’s murky disclaimer that its decision “express[es] no view on this point”— as the federal government enjoys the same kind of broad discretion where pretrial releasees are concerned. See 18 U.S.C. § 3142(c)(1)(B)(xiv) (permitting pretrial release subject to “any other condition that is reasonably necessary to assure the appearance of the person as required and to assure the safety of any other person and the community”). Indeed, the standard pretrial-release form used by all federal district courts provides as a release condition that the defendant “submit -to any method of testing required by the pretrial services office or the supervising officer for determining whether the defendant is using a prohibited substance.” 7 Fed. Proc. Forms § 20:110 (“AO Form .199B”).
While the majority'attempts to limit the impact of its ruling on the federal pretrial program, it is difficult to imagine why the majority’s reasoning would not apply to federal-pretrial cases. As Judge Bybee presciently observes, the majority’s decision would invalidate the federal government’s pretrial-release search' conditions unless federal pretrial officers can first demonstrate probable cause to support those conditions. Revised Dissent at 888-89. The impact has been immediate. To be sure, in the Central District of California, a district that reportedly has one of the highest number of drug offenses in the nation, district judges have informed the relevant supervision authorities not to enforce any drug-testing or warrantless-search conditions in existing pretrial-release orders. These judges have determined that the panel majority’s ruling flatly prohibits them from imposing such conditions.11
The majority’s amended opinion does not alleviate these concerns nor the widespread apprehension that its novel ap*898proach will affect the validity of other pretrial-release conditions imposed for the protection of the community. The regime ushered in by the majority places additional burdens on the federal and state governments that are already tasked with the difficult job of monitoring and enforcing compliance with pretrial-release conditions. What is most unfortunate is that the majority claims to accomplish these ends in the name of the Fourth Amendment by insisting in an unprecedented manner that defendants released pending trial have not suffered a judicial abridgment and that the presumption of innocence is applicable to the determination of pretrial release. Failing to rehear this case en banc, we regrettably succumb to a dangerous, disruptive, and poorly conceived sea change foisted upon all of the states and federal districts encompassed by the Ninth Circuit. Allowing the panel majority’s decision to stand distinguishes our circuit’s pretrial-release procedures from every other circuit in a manner detrimental to both prosecutors and defendants alike. Our only hope can be for the Supreme Court to steer us back on course. For all of the foregoing reasons, I respectfully dissent from today’s order denying en banc review.
. All references to the majority's decision are to the majority's amended opinion filed contemporaneously with today's order denying the government's suggestion for rehearing en banc. In the same vein, all references to the dissent are to Judge Bybee's revised dissenting opinion.
. The panel majority in the instant case admits that the "government is under no duty to grant” pretrial release to the defendant. Am. Op. at 866. If that is so, why may a defendant not submit to searches in exchange for pretrial release? As Judge Bybee points out, "[i]n one sense, the government has no more 'induced' [the defendant] to forgo his Fourth Amendment rights in exchange for his liberty, than [the defendant] has 'induced' the government to forgo its right to require bail in exchange for the right to search him[.]” Revised Dissent at 887 n. 7. Rather than focusing on whether the Fourth Amendment allows the defendant to temporarily permit the State to search him, the more relevant question is whether the agreement was reasonable. As Judge Bybee notes, at the time when the defendant agreed to his pretrial-release conditions in exchange for release, he was in a much better position than this court to weigh the reasonableness of the government's proposal. Id. at 887.
. It seems a little disingenuous for the panel majority to suggest that the United States, which was not a party to the state court proceedings, somehow “concedes” that the state court proceeding was not individualized by noting that the conditions were "checked off by a judge from a standard list of pretrial release conditions.” Am. Op. at 865.
. I find troubling the majority's impression that, in lieu of specialized judicial determinations of the need to appear at trial, the legislature could act to authorize these conditions on drug defendants in order to prevent further criminal activity. The fact of the matter is that the legislature has already acted and Judge Bybee's dissent makes this point clear, and makes the added point that the consensual search conditions are not an authorization to search a member of the general public.
. It is also worth noting that the majority's opinion has been criticized regarding its negative repercussions for criminal defendants and the defense bar in general. Judge Bybee observes in his dissent that the majority's opinion “is not a liberty-enhancing decision,” Revised Dissent at 887, because "[i]t is not hard to imagine that some jurisdictions will decide that releasing persons accused of crimes ... without such conditions will not serve the public interest [and] may respond by ... holding the accused pending trial.” Id. at 889. Such defendants will want to thank the majority for securing their Fourth Amendment rights as "they rest in the county jail." Id. at 889. Judge Bybee’s foresight has been echoed by the defense bar, noting that even though the majority is attempting to protect “the ideal espoused in our legal system that a citizen is innocent until proven guilty, ... it is only fair to point to the problems that this may create from a policy standpoint. If all suspects charged with a crime retain all their rights if they are released, why would the state release them? I mean, they have to set reasonable bail, but if the accused cannot afford this bail, (so mainly the poor), they will have to remain behind bars until their trial.” http://www. blogdenovo.org /archives/001073 .html (last accessed June 1, 2006). Even the Harvard Law Review has criticized the majority's reasoning: "Although the [panel majority] boldly sought to protect privacy and liberty rights[,] ... its reasoning suffers from [ ] significant limitations that undermine the effectiveness of the court's efforts and provide a means for future courts to diminish the Fourth Amendment safeguards the court so daringly sought to protect.” 119 Harv. L. Rev. 1630, 1630-31 (Mar.2006) (footnotes omitted). The law review also states: “The importance of an opinion ... often lies not in the specific outcome it reaches, but rather in the framework it lays down for the resolution of future cases. Thus, while the [majority’s] holding purports] to protect privacy and liberty interests^] ... its reasoning threatens that aim.” Id. at 1637 (footnote omitted).
. Almost every pretrial hearing (and certainly this one) is tailored to the individual defendant. Among other factors, the trial court considers the particular charges in determining whether a defendant poses a danger to the community or to himself, or is likely to appear at trial. Although the panel majority claims that "[tjhere is no evidence that the [bail] conditions were the result of findings made after any sort of hearing” the record tells a different story. Am. Op. at 865. In this case, the pretrial-release form was pre-printed and gave the state judge the option of imposing twelve release conditions, each requiring a separate determination by the judge as to whether that condition would be necessary in the case at hand. The judge did in fact hold a hearing and specifically determined that eight of the twelve conditions served an important and useful purpose in this case, and he even fixed a handwritten notation that limited the kind of warrantless searches that could be conducted. See Supplemental Excerpts of Record at 95:11-18 (Suppression Hr'g Tr.); see also Mot. to Suppress at 2:11-12; Release Order (E. Fork Justice Ct. Apr. 30, 2003). The judge expressly stated that such searches could only be made for the purpose of finding controlled substances and alcohol. I am bewildered by the majority's unwillingness to consider these established record facts.
. For example, 18 U.S.C. § 3142(e) establishes the presumption “that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community,” where an arrestee is charged with a drug-trafficking offense bearing a statutory maximum sentence of 10 years or more.
. The State may also want to impose pretrial-release conditions involving random drug tests and warrantless searches for drugs to ensure that when the accused shows up for court he is not under the influence of any drugs. The State has a strong stake in preserving its judicial resources and these pretrial-release conditions help guarantee that a defendant charged with drug possession is physically and mentally prepared for proceedings so as to ward off delays or claims that he was unable to understand the proceedings or participate meaningfully in his case.
. Assuming that a pretrial releasee may have more '‘rights” than a probationer still begs the question: Why should the defendant be constitutionally prohibited from making this bargain? The panel majority's opinion creates more questions than it answers.
. The panel majority may want us to believe that its decision only affects Neváda, but this ipse dixit is not persuasive. The proof is in the pudding: a Montana state court has already found that the panel majority’s opinion applies to Montana’s pretrial-release procedures, holding that "if the government cannot make the requisite special needs showing, law enforcement needs to have probable cause to search a pretrial individual.” State of Montana v. Hurlbert, No. DC-05-242, 2006 Mont. Dist. LEXIS 19, at *13 (Mont. 18th Jud.Dist. Ct. Jan. 30, 2006).
. The government knows of at least one brave magistrate judge who has broken rank by determining that the panel majority’s decision does not apply to federal pretrial releas-ees. Nonetheless, other federal judges have imported the panel majority’s reasoning into the federal pretrial-release context. For example, in United States v. Skirving, the district court and the government shared the view that the panel majority’s decision does apply to federal pretrial-release conditions. Skirving, No. 01-321-04, 2005 U.S. Dist. LEXIS 38854, at *4, *9, 2005 WL 3436525, at *1, *3 (D.Or. Dec. 14, 2005). This is not surprising given that the standard federal pretrial-release form includes a provision that gives pretrial-release officers the apparent discretion to require "any method of testing.” AO Form 199B (entitled "Additional Conditions of Release”). Despite the revisions in the majority's amended opinion, federal judges and U.S. Attorneys have every reason to wonder what they are supposed to do in the future.