The appellate court withdrew an opinion and dissent filed September 9, 2005, and replaced it with an amended opinion and dissent. In the amended opinion, the court affirmed the district court’s order suppressing evidence obtained as the result of a drug test (unsupported by probable cause) by Nevada state officers and the ensuing search of the house of an individual who was on release while awaiting trial on drug possession charges. The court held that the fact that the defendant consented to the drug test and home search as a condition of his pre-trial release did not by itself render the test and the search constitutionally valid, and that the consent to any search is only valid under the Fourth Amendment if the search (taking the fact of consent into account) was reasonable. The court held that because the government failed to demonstrate that Nevada had special needs for obtaining the drug-testing release condition, the government cannot justify the search – testing the defendant for drugs without probable cause – under the “special needs doctrine.” Neither the general law enforcement purpose of community protection nor the need to ensure that the defendant’s appearance at trial was sufficient under this approach, especially given that the defendant’s privacy interest in his home, where the officers came to perform the drug test, is at its greatest. Noting that the government’s interests in surveillance and control as to a pre-trial releasee are considerably less than in the case of a probationer, the panel held that a search of the defendant or his house on anything less than probable cause was not supported by the totality of the circumstances. Dissenting, Judge Bybee wrote that the majority’s conclusion – that an individual is charged with a crime cannot, as a constitutional manner, give rise to any inference that he is more likely than any other citizen to commit a crime if he is released from custody – is contrary to history, practice, and common sense. He would hold that cases involving pretrial releasees are subject to a balancing test that weighs the state’s legitimate interests against the individual’s privacy interests in light of the unique circumstances and facts of the case; and would conclude that the officers needed only reasonable suspicion to administer the drug test and, once administered, they had probable cause to arrest the defendant and search his living room for weapons.