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Fourth Amendment Right of Female Inmates to be Free From Cross-Gender Pat-Frisks

NCJ Number
Seton Hall Law Review Volume: 33 Issue: 1 Dated: 2002 Pages: 31-66
Jennifer R. Weiser
John M. Falzone, III
Date Published
36 pages
This article reviews the decision by the U.S. Court of Appeals for the Ninth Circuit in the matter of Jordan v. Gardner, in which it refused to analyze cross-gender, clothed body searches under the Fourth Amendment's search and seizure law.
The importance of this decision, demonstrated in this article, is that a finding that cross-gender pat-frisks violated the Fourth Amendment would not have been inconsistent with Fourth Amendment case law because the plaintiffs in Jordan proved, based on statistical psychological evidence, female inmates endured an unprecedented level of harm resulting from the cross-gender searches. The author argues here that this harm renders the searches in Jordan to be unreasonable when balanced against the institutional concerns of the prison. This article begins with a historical legal review of the application of the Fourth Amendment in prison, particularly in the context of cross-gender searches. It then summarizes the factual and legal findings of the Ninth Circuit in Jordan v. Gardner, and discusses the majority's reluctance to decide the female inmates' Fourth Amendment claim. The author distinguishes Jordan from the cases addressing clothed body searches of male inmates by female corrections officers on the basis of the intrusiveness of the search. An explanation of the majority decisions' unwillingness to address the Fourth Amendment issues and potential feminist concerns are addressed. In conclusion, it is explained that the court's factual findings regarding the psychological harm caused by cross-gender pat-frisks of female inmates supports a legal finding that the searches violate both the Fourth and Eighth Amendments.