NOTE
Institutionalizing the Innocent:
Suspicionless Searches of Prison
Visitors’ Vehicles and the Fourth
Amendment
Lara-Beye Molina∗
TABLE OF CONTENTS
INTRODUCTION ................................................................................... 263
I. THE LAW: PRIVILEGING INSTITUTIONAL SECURITY OVER
VISITORS’ FOURTH AMENDMENT RIGHTS .................................. 265
A. Administrative Stops.......................................................... 268
B. Supreme Court Silence on the Scope
of Prison Visitor Rights...................................................... 273
C. Balancing Institutional Security Against
Visitors’ Privacy Rights...................................................... 277
II. NEUMEYER V. BEARD.................................................................. 285
A. Facts and Procedure .......................................................... 285
B. Holding and Rationale ....................................................... 286
III. ANALYSIS .................................................................................. 287
A. Suspicionless Vehicle Searches of Prison Visitors
Impermissibly Exceed an Institution’s Interest in
Intercepting Contraband.................................................... 288

∗ Senior Symposium Editor, UC Davis Law Review. J.D. Candidate, UC Davis
School of Law, 2007; B.A. English and Sociology, University of California, Berkeley,
2004. Many thanks to the fabulous coterie: Dustin Friedman, Kansai Uchida, and
Stephen Knighten; Dave Navarro. Above all, I thank Jill and Miguel Molina, and
Princess for supporting me (regardless of whether I quit and/or fail everything) and
enduring my general malaise. This article is dedicated to Tom Seats.

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B. Courts Should Apply the Same Standard to Searches of
Prison Visitors’ Vehicles That They Apply to Prison
Employees’ Vehicles ........................................................... 295
C. Suspicionless Vehicle Searches Deter Prisoners’ Family
and Friends from Visiting and Inhibit Prisoners’
Rehabilitation .................................................................... 304
CONCLUSION....................................................................................... 311

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Prison continues, on those who are entrusted to it, a work begun
elsewhere, which the whole of society pursues on each individual through
innumerable mechanisms of discipline.
— Michel Foucault
INTRODUCTION
A woman, Marie, plans to visit her husband who has been
incarcerated in state prison. Marie approaches the prison gates with
trepidation. This is her first time visiting her husband in prison. She
passes signs containing various regulations. Marie tries to quickly
scan the first few signs, but the official language unnerves her.
Marie stops her car in front of the guard booth and begins to tell the
officer that she is there to see her husband. Cutting her off midsentence, the officer instructs Marie to get out of the car, open the
doors and the trunk, and get back in the car. Stunned, Marie complies
with the officer’s request. The officer scrutinizes the vehicle’s interior
as he walks a narcotics detection dog around the car.
The dog behaves strangely as it sniffs Marie’s body. Marie inwardly
panics, wondering what is wrong. The officer scrutinizes Marie, and
tells her that she must submit to a strip search before she can visit her
husband. Faced with the difficult choice of submitting to the search
or foregoing her visit, Marie consents to the search.1
When prisoners’ family members and friends visit prisons, they
often expect to submit to some routine searches similar to those
required to board an aircraft.2 However, prison officials have
expanded the scope of the searches required for entry into prisons.3

1 This hypothetical is based on Neumeyer v. Beard, 421 F.3d 210, 214-15 (3d Cir.
2005).
2 See Spear v. Sowders, 71 F.3d 626, 630 (6th Cir. 1995) (noting that prison
administrators may require visitors to submit to some searches merely as condition of
visitation); Shields v. State, 16 So. 85, 86 (Ala. 1894) (upholding requirement that
visitors submit to search prior to visitation, but stating that sheriff cannot search
visitor against his will); People v. Thompson, 523 P.2d 128, 130 (Colo. 1974)
(justifying requirement that visitors consent to search as condition of visitation by
citing danger of visitors smuggling contraband); Wells v. State, 402 So. 2d 402, 404
(Fla. 1981) (noting that prison visitors expect to submit to search for weapons or
other contraband upon entry); People v. Whisnant, 303 N.W.2d 887, 891 (Mich. Ct.
App. 1981) (determining that prison officials reasonably may condition entry on
submission to pat-down search); VIVIEN STERN, A SIN AGAINST THE FUTURE:
IMPRISONMENT IN THE WORLD 123-24 (1998) (noting that prison officials question
nearly all visitors about items carried into facility, search visitors’ belongings, and
require visitors to undergo pat-down search).
3 See United States v. Prevo, 435 F.3d 1343, 1347 (11th Cir. 2006) (upholding

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While prisons still require visitors to submit to a simple pat-down
search or metal detector sweep, officials may also search prison
visitors’ vehicles.4 Although the vehicles remain outside the prison’s
walls, officials argue these searches help maintain institutional security
by preventing contraband from entering the facility.5
This Note explores prison practices and policies allowing prison
officials to conduct warrantless searches of prison visitors’ vehicles.6
Part I contextualizes these policies and practices in Fourth
Amendment jurisprudence.7 Part II explores the Third Circuit’s
decision in Neumeyer v. Beard, where the court determined that the
Fourth Amendment’s special needs exception justified suspicionless
searches of visitors’ vehicles.8 Part III evaluates the legal and policy
implications of these searches.9 First, Part III argues that these
searches violate the Fourth Amendment because prison administrators
do not limit them to preventing contraband from entering the prison.10
Generally, when government actors conduct suspicionless searches
and seizures, they must narrowly tailor the search to fulfill a
compelling governmental need.11 However, suspicionless vehicle

vehicular search of visitor to work release correctional facility under Fourth
Amendment); Neumeyer, 421 F.3d at 214-15 (validating prison practice of conducting
suspicionless searches of prison visitors’ vehicles under Fourth Amendment special
needs doctrine); Romo v. Champion, 46 F.3d 1013, 1016 (10th Cir. 1995) (upholding
vehicle checkpoint on road leading to correctional facility under Fourth Amendment);
Spear, 71 F.3d at 633 (rejecting requirement of individualized suspicion to search
visitor’s car on prison grounds, particularly if signs warn visitor of possibility of
search).
4 See sources cited supra note 3 (chronicling searches of prison visitors’ vehicles).
5 See Prevo, 435 F.3d at 1347 (observing that prisoners could access loaded pistol
and cocaine in defendant’s front seat even if defendant did not smuggle items into
facility); Neumeyer, 421 F.3d at 214-15 (reasoning that random searches of prison
visitors’ vehicles adequately addressed public interest of keeping drugs out of prison);
Romo, 46 F.3d at 1016 (finding that vehicle search matches government’s interest in
drug interdiction and prison security); Spear, 71 F.3d at 633 (“[A]n object secreted in
a car, to which prisoners may have access, is a potential threat at all times after the car
enters the [prison] grounds.”).
6 See discussion infra Parts I.C, II, III (describing and analyzing suspicionless
vehicle searches).
7 See discussion infra Part I (describing legal underpinnings of suspicionless
vehicle searches).
8 Neumeyer, 421 F.3d at 214-15.
9 See discussion infra Part III (evaluating legal and policy arguments for
suspicionless vehicle searches of prison visitors).
10 See discussion infra Part III.A (contending that suspicionless vehicle searches
exceed prison’s interest in intercepting contraband).
11 See discussion infra Parts I.A, III.A (discussing Supreme Court scrutiny of

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searches exceed the prison’s interest in intercepting contraband
because these searches encompass many items that never penetrate the
prison’s walls.12 Part III contends that courts’ lenient evaluation of
whether visitor searches fulfill an institutional purpose reflects a
general willingness to intrude upon the privacy of those associated
with criminals.13 Finally, Part III argues that searches of visitors’
vehicles violate public policy because these searches discourage prison
visitation.14 If inmates remain connected to their families and friends
while in prison, they return to their communities with support
networks that help them avoid crime and stay out of prison.15
I.

THE LAW: PRIVILEGING INSTITUTIONAL SECURITY OVER VISITORS’
FOURTH AMENDMENT RIGHTS

The Fourth Amendment of the United States Constitution
safeguards individual privacy and security by prohibiting government
officials from conducting unreasonable searches and seizures.16
Generally, government actors must obtain a warrant to conduct a
suspicionless searches and seizures).
12 See discussion infra Part III.A (arguing that suspicionless searches of prison
visitors’ vehicles exceed governmental interest in intercepting contraband).
13 See discussion infra Part III.B (comparing courts’ perceptions of prison
employees’ and visitors’ interests).
14 See discussion infra Part III.C (chronicling visitation’s benefits and discussing
how prison regulations discourage visitation).
15 See discussion infra notes 246-51 and accompanying text (linking high rates of
family visitation with improved behavior in prison and lower recidivism rates).
16 See U.S. CONST. amend. IV (“The right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures, shall
not be violated . . . .”); Hudson v. Palmer, 468 U.S. 517, 524-25 & n.7 (1984)
(observing that Fourth Amendment’s applicability turns on whether person can claim
government action invaded reasonable expectation of privacy); Bivens v. Six Unknown
Named Agents, 403 U.S. 388, 392 (1979) (ruling that Fourth Amendment guarantees
citizens absolute right to be free from unreasonable searches and seizures by federal
government); Chimel v. California, 395 U.S. 752, 766 n.12 (1969) (remarking that
Fourth Amendment designed to prevent, not simply to redress, unlawful police
action); Terry v. Ohio, 392 U.S. 1, 8-9 (1968) (recognizing individual’s right to be free
from unreasonable governmental intrusion wherever individual harbors reasonable
privacy expectation); Katz v. United States, 389 U.S. 347, 360-61 (1967) (Harlan, J.,
concurring) (stating that Fourth Amendment has two requirements: “[F]irst, that a
person have exhibited an actual (subjective) expectation of privacy and, second, that
the expectation be one that society is prepared to recognize as ‘reasonable’”); Camara
v. Mun. Court, 387 U.S. 523, 528 (1967) (observing that Fourth Amendment
safeguards individual privacy and security against arbitrary governmental invasions);
United States v. Jeffers, 342 U.S. 48, 51 (1951) (noting that Fourth Amendment
requires government’s adherence to judicial processes).

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search.17 In obtaining a warrant, government actors usually have to
show probable cause, which they do by articulating sufficient facts to
support a reasonable belief that a crime has been committed.18
However, the United States Supreme Court has upheld some
searches as reasonable even when government officials did not obtain
a warrant or show probable cause.19 In those cases, the Court applied
17 See United States v. Place, 462 U.S. 696, 701 (1983) (viewing seizures as per se
unreasonable unless accomplished pursuant to judicial warrant issued upon probable
cause); Stoner v. California, 376 U.S. 483, 486 (1964) (reasoning that search
conducted without warrant survives constitutional inhibition only if surrounding facts
bring search within exception to warrant requirement); Jeffers, 342 U.S. at 51
(emphasizing that Fourth Amendment requires government adherence to judicial
processes).
18 See Illinois v. Gates, 462 U.S. 213, 238 (1983) (defining probable cause as “a
fair probability that contraband or evidence of a crime will be found”); Texas v.
Brown, 460 U.S. 730, 742 (1983) (describing probable cause as “flexible, commonsense standard”); Brinegar v. United States, 338 U.S. 160, 175-76 (1949) (noting that
probable cause does not demand showing that belief is correct or more likely true than
false); Husty v. United States, 282 U.S. 694, 700-01 (1931) (observing that probable
cause exists if apparent facts lead reasonably prudent man to believe that crime is or
has been committed); Carroll v. United States, 267 U.S. 132, 162 (1925) (noting that
probable cause exists where “facts and circumstances within [the officers’] knowledge
and of which they had reasonably trustworthy information [are] sufficient in
themselves to warrant a man of reasonable caution in the belief that” an offense has
been or is being committed); Dumbra v. United States, 268 U.S. 435, 441 (1925)
(establishing probable cause does not require determination that offense charged has
actually been committed); Stacey v. Emery, 97 U.S. 642, 645 (1878) (“If the facts and
circumstances before the officer are such as to warrant a man of prudence and caution
in believing that the offence has been committed, it is sufficient.”); see also United
States v. Cortez, 449 U.S. 411, 418 (1981) (observing that probable cause does not
deal with hard certainties, but with probabilities).
19 See Nat’l Treasury Employees Union v. Von Raab, 489 U.S. 656, 665-66 (1989)
(“[N]either a warrant nor probable cause, nor, indeed, any measure of individualized
suspicion, is an indispensable component of reasonableness in every circumstance.”);
Pennsylvania v. Mimms, 434 U.S. 106, 108-09 (1977) (recognizing that Fourth
Amendment analysis requires considering reasonableness of governmental invasion in
all circumstances); United States v. Martinez-Fuerte, 428 U.S. 543, 560-61 (1976)
(ruling that although Fourth Amendment usually required individualized suspicion
for constitutional search or seizure, it does not impose irreducible requirement of
such suspicion); United States v. Rabinowitz, 339 U.S. 56, 63-64 (1950) (“[R]ecurring
questions of the reasonableness of searches must find resolution in the facts and
circumstances of each case.”); see also Carroll, 267 U.S. at 149 (validating search and
seizure even though made without warrant). Although not supported by the typical
quantum of individualized suspicion, the Supreme Court found that some searches
furthering a special governmental need are constitutionally “reasonable.” See
generally Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646 (1995) (holding that school
policy of drug testing athletes did not violate student’s constitutional right to be free
from unreasonable searches); Mich. Dep’t of State Police v. Sitz, 496 U.S. 444 (1990)
(finding that checkpoints stopping all motorists and examining drivers for signs of

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a balancing test to gauge the search’s reasonableness where
government actors did not comply with the warrant and probable
cause requirements.20 The Court analyzed whether a compelling
governmental interest justifies the intrusion into individual privacy
entailed by such searches.21 Applying this test, the Court may allow
government actors to conduct searches based on reasonable suspicion,
or in some circumstances, without any showing of suspicion.22 In

intoxication did not violate Fourth Amendment). But cf. Ferguson v. City of
Charleston, 532 U.S. 67 (2001) (holding that state hospital’s suspicionless drug
testing of pregnant patients violated Fourth Amendment); City of Indianapolis v.
Edmond, 531 U.S. 32 (2000) (invalidating suspicionless seizures at highway
checkpoints because program indistinguishable from general crime control).
20 See Vernonia Sch. Dist., 515 U.S. at 653 (quoting Skinner v. Ry. Labor
Executives’ Ass’n, 489 U.S. 602, 619 (1989)) (evaluating searches with no established
standard by balancing intrusion on individual’s Fourth Amendment interests against
legitimate governmental interests); Nat’l Treasury Employees Union, 489 U.S. at 665-66
(determining practicability of individualized suspicion and warrant requirement by
balancing individual’s privacy expectations against government’s interests in context);
Delaware v. Prouse, 440 U.S. 648, 654 (1979) (judging law enforcement program’s
permissibility by balancing intrusion on individual’s Fourth Amendment interests
against promotion of legitimate governmental interests); Bell v. Wolfish, 441 U.S. 520,
559 (1979) (stating that test of reasonableness under Fourth Amendment “requires a
balancing of the need for the particular search against the invasion of personal rights
that the search entails”); Martinez-Fuerte, 428 U.S. at 555 (delineating constitutional
safeguards applicable in particular contexts by weighing public interest against
individual’s privacy interests); United States v. Brignoni-Ponce, 422 U.S. 873, 878
(1975) (determining search’s reasonableness by balancing public interest and
individual’s right to personal security free from arbitrary interference by law officers);
see also Camara, 387 U.S. at 535 (weighing need for inspection in terms of reasonable
goals of code enforcement to determine building inspection’s reasonableness).
21 See Prouse, 440 U.S. at 653-54 (evaluating law enforcement practice’s
permissibility by balancing intrusion on individual’s Fourth Amendment rights against
promotion of legitimate governmental interest); Bell, 441 U.S. at 559 (considering
intrusion’s scope and justification to balance governmental need for particular search
against invasion of personal rights); Terry, 392 U.S. at 27 (allowing officer who
reasonably believes he is dealing with armed and dangerous individual to conduct
protective search for weapons without probable cause to make arrest); Camara, 387
U.S. at 533-34 (finding that burden of obtaining warrant is likely to frustrate
governmental purpose behind search); Schmerber v. California, 384 U.S. 757, 770-71
(1966) (finding that officer confronted with emergency situation reasonably feared
destruction of evidence if search delayed).
22 See Illinois v. Lidster, 540 U.S. 419, 423-24 (2004) (approving suspicionless
highway checkpoint seeking information about prior hit-and-run accident); Sitz, 496
U.S. at 455 (upholding highway sobriety checkpoint program that stopped all vehicles
and examined drivers for signs of intoxication); United States v. Sokolow, 490 U.S. 1,
7 (1989) (requiring officers to articulate “some minimal level of objective
justification” for making stop, although “less than proof of wrongdoing by a
preponderance of the evidence”); Cortez, 449 U.S. at 417 (upholding brief

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conducting this inquiry, the Court focuses on the specific facts and
circumstances of each case.23
A. Administrative Stops
Occasionally, the Supreme Court has suspended the requirement of
probable cause when confronted with a compelling governmental
need.24 In these situations, government officials must limit their
search to narrowly meet that governmental need.25 Although the
Court has not considered suspicionless searches of prison visitors’
vehicles, it has considered the constitutionality of suspicionless stops
investigatory stops when objective facts indicate that person stopped is or is about to
be engaged in criminal activity); Martinez-Fuerte, 428 U.S. at 561-62 (approving
border patrol checkpoints that routinely stopped or slowed automobiles to intercept
illegal immigrants); Brignoni-Ponce, 422 U.S. at 880 (justifying border patrol
investigatory stops on less than probable cause); Terry v. Ohio, 392 U.S. 1, 25-26
(1968) (permitting police officer to conduct brief search for weapons in absence of
probable cause if officer believes dealing with armed and dangerous individual).
23 See Ohio v. Robinette, 519 U.S. 33, 39 (1996) (eschewing bright-line rules in
favor of fact-specific reasonableness inquiry when analyzing search’s reasonableness);
Wilson v. Arkansas, 514 U.S. 927, 934 (1995) (commenting that Fourth Amendment’s
flexible requirement of reasonableness does not mandate rigid rule that ignores
countervailing law enforcement interests); Florida v. Bostick, 501 U.S. 429, 439
(1991) (reversing lower court’s ruling that questioning aboard bus must always
constitute seizure because proper Fourth Amendment inquiry requires considering all
circumstances surrounding encounter); Michigan v. Chesternut, 486 U.S. 567, 572-73
(1988) (rejecting “bright-line rule[s] applicable to all investigatory pursuits” as
contrary to “traditional contextual approach”); Florida v. Royer, 460 U.S. 491, 506
(1983) (disavowing any “litmus-paper test” or single “sentence or . . . paragraph . . .
rule” because endless factual variations implicate Fourth Amendment); Chimel v.
California, 395 U.S. 752, 765 (1969) (analyzing search’s reasonableness by examining
facts and circumstances in light of established Fourth Amendment principles);
Rabinowitz, 339 U.S. at 63 (rejecting fixed formula to assess search’s reasonableness).
24 See cases cited supra notes 19-20 (upholding searches and seizures based on less
than probable cause).
25 See Royer, 460 U.S. at 500 (“[If] legitimate law enforcement interests justify
warrantless search[,] the search must be limited in scope to that which is justified by
the particular purposes served by the exception.”); Terry, 392 U.S. at 19 (“The scope
of the search must be ‘strictly tied to and justified by’ the circumstances which
rendered its initiation permissible.”) (quoting Warden v. Hayden, 387 U.S. 294, 310
(1967) (Fortas, J., concurring)); Kremen v. United States, 353 U.S. 346, 347 (1957)
(holding that search which is reasonable at its inception may violate Fourth
Amendment by virtue of its intolerable intensity and scope); United States v. Davis,
482 F.2d 893, 910 (9th Cir. 1973) (requiring officials to limit administrative screening
search to satisfying administrative need); see also Florida v. Jimeno, 500 U.S. 248, 251
(1991) (noting that “scope of a search is generally defined by its expressed object”);
Agnello v. United States, 269 U.S. 20, 30-31 (1925) (limiting permissible breadth of
search incident to arrest).

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in other circumstances.26 Lower courts evaluating suspicionless
searches of prison visitors often adopt the Supreme Court’s framework
for analyzing suspicionless searches in other contexts.27
In City of Indianapolis v. Edmond, for example, the Supreme Court
considered the reasonableness of suspicionless vehicle stops aimed at
interdicting unlawful drugs.28
The city established vehicle
checkpoints where police officers stopped a predetermined number of
vehicles at random.29 After stopping a vehicle, an officer scrutinized
the driver for signs of impairment, and scanned the passenger cabin
from outside the vehicle.30 Another officer walked a narcotics
detection dog around the vehicle’s exterior.31 Officers conducted each
stop in the same manner unless they developed probable cause or
reasonable suspicion.32 Motorists sued the city, claiming that these
administrative stops constituted unreasonable seizures violating the
Fourth Amendment.33
The Court struck down these suspicionless stops because the Court
determined that examining passing cars did not narrowly address the
government’s interest in confiscating narcotics.34
The Court
acknowledged that the government has a compelling interest in
26 See generally Lidster, 540 U.S. at 419 (approving highway checkpoint seeking
information about prior hit-and-run accident); City of Indianapolis v. Edmond, 531
U.S. 32 (2000) (striking down city’s drug interdiction stops because they served
general law enforcement purpose); Mich. Dep’t of State Police v. Sitz, 496 U.S. 444
(1990) (upholding highway sobriety checkpoint program that stopped vehicles and
examined drivers for signs of intoxication); Delaware v. Prouse, 440 U.S. 648 (1979)
(invalidating registration and licensing stops that endowed police officers with
unrestrained discretion); United States v. Martinez-Fuerte, 428 U.S. 543 (1976)
(approving border patrol checkpoints that routinely stop or slow automobiles to
intercept illegal immigrants).
27 See Neumeyer v. Beard, 421 F.3d 210, 215-16 (3d Cir. 2005) (distinguishing
suspicionless vehicle search from invalidated stop and detention programs); Romo v.
Champion, 46 F.3d 1013, 1016-20 (10th Cir. 1995) (analyzing search at vehicle
checkpoint on road leading to prison in light of Supreme Court administrative stop
cases); see also United States v. Prevo, 435 F.3d 1343, 1347 (11th Cir. 2006)
(evaluating search of visitor’s car in light of institutional security rationale).
28 531 U.S. at 34.
29 Id. at 35. Police selected checkpoint locations several weeks in advance based
on the area’s crime statistics and traffic flow. Id. Officers could not stop vehicles out
of sequence. Id.
30 Id.
31 Id.
32 Id. Absent the development of reasonable suspicion or probable cause, each
stop lasted approximately two or three minutes, or less. Id.
33 Id. at 36-37.
34 Id. at 43-45.

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intercepting illegal narcotics in light of the severe and intractable
nature of the drug problem.35 Nevertheless, the Court found no
evidence that random vehicle stops effectively addressed this issue.36
Rather than confining their investigation to detecting narcotics,
officers used these checkpoints to search for evidence of other
criminal wrongdoing.37 Because the checkpoints failed to address
effectively the special need of intercepting illegal narcotics, the Court
refused to suspend the probable cause requirement.38
In deciding Edmond, the Court distinguished the city’s drug
interdiction program from other administrative stop programs that
appropriately addressed a legitimate governmental interest.39 In past
cases, the Supreme Court approved brief suspicionless stops of
vehicles that checked drivers for signs of intoxication, or that
intercepted illegal immigrants near borders.40 In these cases, the
Court determined that officers could effectively discern whether a
driver was intoxicated or if a car contained illegal immigrants by
briefly detaining the vehicle.41 Thus, these stops allowed government
actors to address effectively the problem of drunk driving or
apprehend illegal immigrants without excessively intruding on
people’s privacy.42 Rather than using these searches as a pretext to

See id. at 42 (“The Court acknowledged that the government has a compelling
interest in intercepting illegal narcotics in light of the severe and intractable nature of
the drug problem.”).
36 Id. at 44-46.
37 Id. at 41-42; see supra note 18 and accompanying text (discussing scope of
probable cause in relation to criminal wrongdoing); see also Delaware v. Prouse, 440
U.S. 648, 659-61 (1979) (finding that interest served by spot-check licensing program
is indistinguishable from general crime control).
38 Edmond, 531 U.S. at 44.
39 Id. at 42-45.
40 See Mich. Dep’t of State Police v. Sitz, 496 U.S. 444, 451-52 (1990) (validating
sobriety checkpoints); United States v. Martinez-Fuerte, 428 U.S. 543, 563-64 (1976)
(approving border checkpoints). In Edmond the Court suggested that it might permit
checkpoints designed to thwart an imminent terrorist attack or catch a fleeing
dangerous criminal. Edmond, 531 U.S. at 44-45. Although related to crime control,
these exigencies are “far removed from the circumstances under which authorities
might simply stop cars as a matter of course to see if there just happens to be a felon
leaving the jurisdiction. . . . [W]e decline to approve a program whose primary
purpose is ultimately indistinguishable from the general interest in crime control.” Id.
41 See Sitz, 496 U.S. at 454-55 (noting that empirical data validates sobriety
checkpoints); Martinez-Fuerte, 428 U.S. at 554 (citing checkpoint’s rate of
apprehending illegal immigrants to demonstrate program’s effectiveness).
42 See supra note 40 (describing how Court ascertained checkpoints’ efficacy).
35

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effectuate other law enforcement objectives, the government
circumscribed their intrusions to meet compelling needs.43
Courts often analogize suspicionless searches of visitors’ vehicles to
administrative searches upheld by the Supreme Court.44 Courts do
this by characterizing preventing contraband from entering prisons as
a compelling governmental interest.45 They recognize the hazards that
contraband poses to the internal order and security of the penal
environment.46 If an inmate acquires weapons or drugs, he or she may
See Edmond, 531 U.S. at 44 (suggesting permissibility of roadblock designed to
thwart imminent terrorist attack or catch dangerous criminal); Sitz, 496 U.S. at 451-52
(noting drunk driving problem’s magnitude and indisputable state interest in
eradicating problem); Martinez-Fuerte, 428 U.S. at 557 (identifying smugglers’ and
illegal aliens’ apprehension as government’s most vital traffic checking operation).
44 See Neumeyer v. Beard, 421 F.3d 210, 215-16 (3d Cir. 2005) (distinguishing
suspicionless vehicle search from invalidated stop and detention programs); Romo v.
Champion, 46 F.3d 1013, 1016-20 (10th Cir. 1995) (analyzing search at vehicle
checkpoint on road leading to prison in light of Supreme Court administrative stop
cases); see also United States v. Prevo, 435 F.3d 1343, 1347 (11th Cir. 2006)
(evaluating search of visitor’s car in light of institutional security rationale).
45 See Evans v. Stephens, 407 F.3d 1272, 1289 (11th Cir. 2005) (noting
correctional facility’s primary goal must be intercepting contraband because of
dangers contraband presents in correctional setting); Thompson v. City of Los
Angeles, 885 F.2d 1439, 1446 (9th Cir. 1989) (“[T]he prevention of the introduction
of weapons or other contraband into the jail . . . is indeed an extremely weighty
government interest.”); Hunter v. Auger, 672 F.2d 668, 674 (8th Cir. 1982) (“Within
prison walls, a central objective of prison administrators is to safeguard institutional
security. To effectuate this goal, prison officials are charged with the duty to intercept
and exclude by all reasonable means all contraband smuggled into the facility.”);
McDonell v. Hunter, 612 F. Supp. 1122, 1126 (S.D. Iowa 1985) (describing
prevention of distribution of weapons, drugs, and other contraband to inmates as
imperative to institutional security); Brown v. Hilton, 492 F. Supp. 771, 777 (D.N.J.
1980) (“A Penitentiary is a unique institution fraught with sensitive security hazards,
not the least of these being smuggling of contraband such as drugs, money, knives,
etc.”) (internal quotation marks omitted).
46 See Hudson v. Palmer, 468 U.S. 517, 527 (1984) (recognizing that prison
administrators must confront perplexing problem of introduction of drugs and other
contraband into prison environment); Block v. Rutherford, 468 U.S. 576, 588-89
(1984) (noting unauthorized narcotic use plagues virtually every penal and detention
center in country); Bell v. Wolfish, 441 U.S. 520, 559 (1979) (characterizing serious
security dangers in detention centers including smuggling of money, drugs, weapons,
and other contraband); Prevo, 435 F.3d at 1346 (emphasizing critical security
measures that prisons employ to keep contraband away from prison property and out
of prison facilities); Goff v. Nix, 803 F.2d 358, 365 (8th Cir. 1986) (taking judicial
notice of “high level of violent crime, unauthorized use of narcotics, and other drugs
currently plaguing penal institutions”); Thorne v. Jones, 585 F. Supp. 910, 912-13
(M.D. La. 1984) (describing serious security problems presented by smuggling of
contraband into prison); State v. Manghan, 313 A.2d 225, 228 (N.J. Super. Ct. Law
Div. 1973) (“[T]he perils of the availability of drugs in a penal institution cannot be
43

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use these items to harm employees or manipulate other prisoners.47
Courts cite this governmental interest in maintaining institutional
security to empower prison administrators to search visitors’
vehicles.48 This security interest empowering prison administrators to
exaggerated. . . . [Prison officials] ha[ve] a duty to adopt reasonable procedures to
insure that drugs are not available to inmates.”); STERN, supra note 2, at 122 (noting
that keeping drugs out of prison consumes considerable amount of prison
administrators’ time and attention); see also Estes v. Rowland, 17 Cal. Rptr. 2d 901,
908 (Ct. App. 1993) (finding that prison’s drug problem affects communities outside
prison because “friends and relatives of inmates may be coerced into illegally
acquiring drugs [for] the inmate”).
47 See Whitley v. Albers, 475 U.S. 312, 321-22 (1986) (discussing threats to staff
and inmates in prison environment); Jones v. N.C. Prisoners’ Labor Union, 433 U.S.
119, 132 (1977) (describing “ever-present potential for violent confrontation and
conflagration” in prisons); Neumeyer, 421 F.3d at 214 (“The penal environment is
fraught with serious security dangers. Incidents in which inmates have obtained
drugs, weapons, and other contraband are well-documented in case law and regularly
receive the attention of the news media.”); Evans, 407 F.3d at 1289 (“[C]ontraband
poses the greatest security risk for officials at detention facilities.”); Spear v. Sowders,
71 F.3d 626, 630 (6th Cir. 1995) (“Prisons are dangerous and filled with law-breaking
because that is where the criminals are. Even the most secure prisons are dangerous
places for inmates, employees, and visitors.”); Sec. & Law Enforcement Employees v.
Carey, 737 F.2d 187, 191-92 (2d Cir. 1984) (“Once contraband, including drugs,
money, weapons, and myriad of other items, is introduced into the prison
environment, the order and routine that must be maintained to achieve stability and
security in these facilities is apt to be undermined and disrupted. The consequence
obviously can place the lives and well-being of both staff and inmates in serious
jeopardy.”); Holton v. Mohon, 684 F. Supp. 1407, 1415 (N.D. Tex. 1987) (describing
strip and body cavity search’s purpose as looking for weapons or contraband to
protect inmates and prison personnel); BUREAU OF LABOR STATISTICS, U.S. DEP’T OF
LABOR, OCCUPATIONAL OUTLOOK HANDBOOK 2006-2007 (2005), available at
http://stats.bls.gov/oco/ocos156.htm (describing correctional officers’ work as stressful
and hazardous).
48 See Neumeyer, 421 F.3d at 214 (“[C]onsidering the relatively minor
inconvenience of the searches, balanced against the . . . officials’ special need to
maintain the security and safety of the prison that rises beyond their general need to
enforce the law, the prison officials’ practice of engaging in suspicionless searches of
prison visitors’ vehicles is valid.”); Romo, 46 F.3d at 1017 (upholding suspicionless
search of prison visitor’s vehicle at roadblock because search matched interest in
intercepting narcotics that visitors attempt to take to inmates); Spear, 71 F.3d at 633
(upholding vehicle search based on prison’s interest in intercepting contraband);
Estes, 17 Cal. Rptr. 2d at 920 (upholding vehicle search as justifiable component of
comprehensive program dealing with contraband problem in prisons); People v.
Turnbeaugh, 451 N.E.2d 1016, 1019 (Ill. App. Ct. 1983) (rejecting argument that
“[s]earching incoming cars was not a sufficiently reasonable method of detecting
incoming contraband, because of routine extensive searches of the person of each
visitor to the institution, which would take place with or without vehicle searches”);
State v. Daniels, 887 A.2d 696, 698 (N.J. Super. Ct. App. Div. 2005) (discerning no
reason to exclude visitor’s vehicle from property subject to search).

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search visitors’ vehicles grants administrators great power to regulate
inmates.49
B. Supreme Court Silence on the Scope of Prison Visitor Rights
The Supreme Court has not specifically addressed the scope of
prison visitors’ Fourth Amendment rights.50 Despite this silence, the
Court’s jurisprudence on prisoners’ and pretrial detainees’ Fourth
Amendment rights sheds light on the rights accorded prison visitors.51
Initially, inmates’ and visitors’ rights appear unrelated because visitors
retain the liberties that inmates lose as a consequence of being
incarcerated.52 In the absence of constitutional guidance on visitors’
rights, however, courts use the government’s interest in institutional
security to analogize visitors’ rights to inmates’ rights.53
In Bell v. Wolfish, for example, the Supreme Court considered the
Fourth Amendment rights of pretrial detainees held in a federally
operated, short-term, custodial facility.54 The pretrial detainees
alleged that various facility regulations amounted to pretrial
punishment, thereby violating their constitutional rights.55 Inmates
49 See discussion infra Part I.B (describing Supreme Court deference to prison
administrators’ expertise).
50 See discussion infra Part I.C (describing how lower courts evaluate prison
visitors’ Fourth Amendment rights in absence of Supreme Court guidance).
51 See discussion infra Part I.C (discussing courts’ comparisons of visitors and
prisoners). See generally Ky. Dep’t of Corr. v. Thompson, 490 U.S. 454 (1989)
(holding that prison regulations listing visitors excluded from visitation did not give
inmates liberty interest in visitation protected by Due Process Clause); Hudson, 468
U.S. at 517 (rejecting contention that inmate possessed reasonable expectation of
privacy in his prison cell entitling him to Fourth Amendment protection); Bell, 441
U.S. at 521 (justifying limiting convicted prisoners’ and pretrial detainees’ retained
constitutional rights with institutional goals of maintaining security and preserving
internal order).
52 See Boren v. Deland, 958 F.2d 987, 988 (10th Cir. 1992) (“Prison visitors do
not abandon their constitutional rights when they enter a penitentiary.”); Daugherty
v. Campbell, 935 F.2d 780, 786 (6th Cir. 1991) (holding that prison visitors do not
“suffer a wholesale loss of rights” even though exigencies of prison security diminish
their expectation of privacy); Blackburn v. Snow, 771 F.2d 556, 563 (1st Cir. 1985)
(describing societal recognition that free citizens entering prison as visitors retain
legitimate expectation of privacy); see also Procunier v. Martinez, 416 U.S. 396, 40809 (1974) (invalidating censorship of prisoners’ mail because “censorship of prisoner
mail works a consequential restriction on the First and Fourteenth Amendments
rights of those who are not prisoners”).
53 See discussion infra this Part (justifying limitations on visitors’ Fourth
Amendment rights with compelling need to maintain institutional security).
54 Bell v. Wolfish, 441 U.S. 520, 523 (1979).
55 Id. at 526-27.

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challenged prison policies that required them to undergo body cavity
searches following visits and policies that forced them to allow prison
officials to inspect their rooms.56 The Court determined that the
Fourth Amendment permitted the government to detain individuals to
ensure their presence at trial.57
Thus, prisons could impose
regulations reasonably related to ensuring a detainee’s presence at
trial.58
Once the government lawfully detains an individual, the
government possesses an interest in regulating that individual within
the detention facility.59 This interest in institutional security allows
the government to impose administrative restraints beyond those
strictly necessary to ensure a detainee’s trial appearance.60 For
example, government officials may conduct various searches of
detainees, inspect their rooms, monitor their mail, or limit their phone
calls.61 These additional restraints allow the government to operate an
orderly and secure detention facility.62 In scrutinizing these measures,
the Court affords prison administrators wide-ranging deference
because of their familiarity with the institution’s needs.63 This means

Id. at 527 n.7.
See id. at 537. In Bell, the Court looked to whether the facility imposed the
disability for the purpose of punishment or whether it incidentally flowed from
another legitimate governmental purpose. Id. at 537-38. Taken from Kennedy v.
Mendoza-Martinez, this test distinguishes permissible regulatory restraints from
punitive measures the government may not impose prior to a determination of guilt.
Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69 (1963).
58 Bell, 441 U.S. at 539.
59 Id. at 540.
60 Id.
“[I]n addition to ensuring the detainees’ presence at trial, the effective
management of the detention facility . . . is a valid objective that may justify
imposition of conditions and restrictions of pretrial detention and dispel any inference
that such restrictions are intended as punishment.” Id.
61 Id. at 527 n.7, 544-62 (analyzing and ultimately upholding various restrictions
and practices designed to promote security and order at pretrial facility).
62 Id. at 540.
63 Id. at 547. Although courts may disagree with the means selected to effectuate
the institution’s interest, courts should not “second-guess the expert administrators on
matters on which they are better informed.” Id. at 544. In assessing whether prison
restrictions reasonably relate to institutional order, courts must recognize that these
“considerations are peculiarly within . . . [the] professional expertise of corrections
officials.” Pell v. Procunier, 417 U.S. 817, 827 (1974). Absent substantial evidence
indicating that officials have exaggerated their response to these considerations, courts
should ordinarily defer to their expert judgment. Id.; see Jones v. N.C. Prisoners’
Labor Union, 433 U.S. 119, 126 (1977) (according prison administrators’ wideranging deference because of complex and difficult realities of running penal
institution); Procunier v. Martinez, 416 U.S. 396, 404 (1974) (“[F]ederal courts have
56
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that courts will only invalidate prison regulations if they obviously do
not serve a legitimate penological interest.64
In the prison context, courts seem reluctant to require that officials
narrowly tailor regulations to match governmental objectives.65
adopted a broad hands-off attitude toward problems of prison administration.”); see
also Meachum v. Fano, 427 U.S. 215, 225 (1976) (refusing to hold that any substantial
deprivation imposed by prison authorities triggers Due Process Clause’s procedural
protections).
64 See Turner v. Safley, 482 U.S. 78, 89 (1987) (“[W]hen a prison regulation
impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably
related to legitimate penological interests.”); Block v. Rutherford, 468 U.S. 576, 586
(1984) (requiring “valid, rational connection” between prison regulation and
legitimate governmental interest put forward to justify regulation); Pell, 417 U.S. at
827 (deferring to prison officials’ expert judgment unless substantial evidence
indicates officials have exaggerated their response to security considerations); Wolff v.
McDonnell, 418 U.S. 539, 556 (1974) (requiring mutual accommodation between
prison’s institutional needs and Constitution); see also Johnson v. Avery, 393 U.S. 483,
486 (1969) (noting that federal courts will discharge their duty to protect
constitutional rights if prison regulation or practice offends constitutional guarantees).
65 See Sandin v. Conner, 515 U.S. 472, 482 (1995) (instructing federal courts to
afford appropriate deference and flexibility to state officials managing volatile prison
environment); Turner, 482 U.S. at 90 (noting that courts should defer to prison
officials’ expert judgment if inmates have alternative means of exercising
constitutional right); Whitley v. Albers, 475 U.S. 312, 321-22 (1986) (deferring to
prison officials’ judgment in implementing security measures that respond to actual
confrontations and prophylactic measures intended to prevent breaches of prison
discipline); Rhodes v. Chapman, 452 U.S. 337, 350 n.14 (1981) (leaving matters of
prison’s internal security to prison administrators’ discretion); Bell v. Wolfish, 441
U.S. 520, 547 (1979) (“Prison administrators . . . should be accorded wide-ranging
deference in the adoption and execution of policies and practices that in their
judgment are needed to preserve internal order and discipline and to maintain
institutional security.”); N.C. Prisoners’ Labor Union, 433 U.S. at 126 (recognizing
wide ranging deference to prison officials); Pell, 417 U.S. at 827 (instructing courts to
be particularly conscious of “judicial deference owed to corrections officials . . . in
gauging the validity of the regulation”); Conyers v. Abitz, 416 F.3d 580, 584 (7th Cir.
2005) (deferring to prison officials’ judgment in evaluating necessary measures to
preserve institutional order and discipline); Bahrampour v. Lampert, 356 F.3d 969,
973 (9th Cir. 2004) (“State prison officials are given deference in day-to-day prison
operations due to separation of powers and federalism concerns.”); Stanley v. Henson,
337 F.3d 961, 966 (7th Cir. 2003) (citing Bell, 441 U.S. at 547) (affording prison
officials’ decisions substantial — though not complete — deference); Ort v. White,
813 F.2d 318, 322 (11th Cir. 1987) (holding that courts must keep in mind
paramount concerns of maintaining order and discipline when considering inmate
challenges to prison officials’ conduct); Tubwell v. Griffith, 742 F.2d 250, 252 (5th
Cir. 1984) (upholding prison administrators’ decisions unless they have unreasonably
exaggerated their response to security and disciplinary considerations); Wolfish v.
Levi, 573 F.2d 118, 125 (2d Cir. 1978) (“Concern with minutiae of prison

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Although the Supreme Court advised courts to defer to prison
administrators’ judgment in regulating prisoners, the Court never
formally stated that this deference should govern prison visitors’
treatment.66 Nevertheless, courts seem hesitant to carefully review
prison regulations that apply to visitors.67
administration can only distract the court from detached consideration of the one
overriding question presented to it: does the practice or condition violate the
Constitution?”); Newman v. Alabama, 559 F.2d 283, 286 (5th Cir. 1977) (noting that
prison administrators, not courts, must be permitted to make difficult judgments
concerning prison operations); Ford v. Bd. of Managers of N.J. State Prison; 407 F.2d
937, 940 (3d Cir. 1969) (“Discipline reasonably maintained in [state] prisons is not
under the supervisory direction of the federal courts.”); Carter v. Cuyler, 415 F. Supp.
852, 856 (E.D. Pa. 1976) (“[P]rison discipline remains still largely within the
discretion of the prison authorities and federal courts will interfere only where
paramount federal constitutional or statutory rights intervene.” (citing Breeden v.
Jackson, 457 F.2d 578, 580 (4th Cir. 1972))).
66 See
Martinez, 416 U.S. at 408-09 (rejecting regulation of prisoner
correspondence because of non-prisoner’s First Amendment rights); Boren v. Deland,
958 F.2d 987, 988 (10th Cir. 1992) (finding that prison visitors cannot
constitutionally suffer wholesale loss of rights, nor even one commensurate with that
suffered by inmates); see also Wood v. Clemmons, 89 F.3d 922, 929-30 (5th Cir.
1996) (finding that reasonable suspicion standard strikes balance between visitors’
legitimate privacy interests and prison’s need to maintain institutional order); Spear v.
Sowders, 71 F.3d 626, 629-30 (6th Cir. 1995) (“Fourth Amendment does not afford a
person seeking to enter a penal institution the same rights that a person would have
on public streets or in a home.”); Romo v. Champion, 46 F.3d 1013, 1018 (10th Cir.
1995) (acknowledging that prison visitor possesses legitimate expectation of privacy
diminished by exigencies of penal environment); Daugherty v. Campbell, 935 F.2d
780, 786 (6th Cir. 1991) (finding that prison visitor retains legitimate expectation of
privacy diminished by exigencies of prison security); Blackburn v. Snow, 771 F.2d
556, 563 (1st Cir. 1985) (“[T]hose visiting a prison cannot credibly claim to carry
with them the full panoply of rights they normally enjoy. But neither may they
constitutionally be made to suffer a wholesale loss of rights — nor even one
commensurate with that suffered by inmates.”).
67 See United States v. Prevo, 435 F.3d 1343, 1347 (11th Cir. 2006) (deferring to
corrections officials’ common sense judgment that two layers of searches, or “doubletier of deterrence,” is better than one); Neumeyer v. Beard, 421 F.3d 210, 214 (3d Cir.
2005) (empowering officials to conduct suspicionless vehicle searches based on duty
to intercept and exclude contraband); Spear, 71 F.3d at 630 (citing deference accorded
prison authorities’ decisions to provide authorities leeway in conducting visitor
searches); Romo, 46 F.3d at 1015 (deferring to judgment of prison administrators
when considering roadblock that stopped motorists entering correctional facility);
Hunter v. Auger, 672 F.2d 668, 676 (8th Cir. 1982) (“Because of the substantial state
interest in banning drugs and other contraband from prisons, correctional officials are
entitled to formulate visitation regulations designed to accomplish this end.”); State v.
Daniels, 887 A.2d 696, 698 (N.J. Super. Ct. App. Div. 2005) (disregarding defendant’s
claim that “physically impossible for any contraband to be transported directly from a
visitor’s car to an inmate, absent a human intermediary, who is subject to a mandatory
personal search”).

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C. Balancing Institutional Security Against Visitors’ Privacy Rights
Prison officials can require visitors to submit to a variety of searches
to prevent contraband from entering the facility.68 Virtually all prison
visitors must consent to a pat-down search or metal detector sweep as
a condition of entry.69 Administrators must have reasonable suspicion
to escalate this routine search and require a visitor to consent to an
invasive bodily search as a condition of entry.70 Some prisons also
allow officials to search visitors’ vehicles.71 Currently, the standards

68 See sources cited infra notes 69-71 (describing permissible searches of prison
visitors).
69 See Spear, 71 F.3d at 630 (“Visitors can be subjected to some searches, such as a
pat-down or a metal detector sweep, merely as a condition of visitation, absent any
suspicion.”); Thorne v. Jones, 585 F. Supp. 910, 918 (M.D. La. 1984) (noting that
peculiar security problems inherent in prisons may justify pat-down search of all
visitors); Shields v. State, 16 So. 85, 86 (Ala. 1894) (upholding searches of all persons
prior to visitation, but noting that sheriff cannot search visitor against his will); People
v. Thompson, 523 P.2d 128, 130 (Colo. 1974) (citing danger of visitors transporting
contraband into penitentiary to justify requirement that visitors consent to search);
Wells v. State, 402 So. 2d 402, 404 (Fla. 1981) (observing prison visitors expect to
submit to search for weapons or other contraband); People v. Whisnant, 303 N.W.2d
887, 891 (Mich. Ct. App. 1981) (upholding condition that visitor submit to pat-down
search prior to entry); STERN, supra note 2, at 123-24 (noting that prison officials
question nearly all visitors about items carried in, search their belongings, and subject
visitors to pat-down search).
70 See Wood, 89 F.3d at 929-30 (declining to permit strip search absent
individualized suspicion); Spear, 71 F.3d at 630 (noting that visitors’ residual privacy
interests require that prison authorities reasonably suspect that visitor bears
contraband before conducting invasive search); Boren, 958 F.2d at 988 (requiring
prison officials to support strip searches of prison visitors with reasonable suspicion);
Daugherty, 33 F.3d at 556-57 (requiring prison officials to possess reasonable
suspicion before authorizing strip search of prison visitor); Blackburn, 771 F.2d at 564
(requiring prison officials establish reasonable suspicion before subjecting visitors to
“grossly invasive body search”); Hunter, 672 F.2d at 674-75 (“[P]rison officials must
have reasonable grounds, based on objective facts, to believe that a particular visitor
will attempt to smuggle contraband by secreting and carrying it on his person [to
conduct a strip search].”).
71 See Prevo, 435 F.3d at 1347 (declaring vehicle searches on prison property are
obvious way to keep contraband out of prisons); Neumeyer, 421 F.3d at 214
(validating prison officials’ practice of engaging in suspicionless searches of prison
visitors’ vehicles under special needs doctrine); Spear, 71 F.3d at 633 (declining to
require individualized suspicion for vehicle search on prison grounds, particularly if
visitor warned about search’s possibility); Romo, 46 F.3d at 1018 (upholding search at
vehicle stop and search at roadblock on road to prison’s visitor parking lot); Estes v.
Rowland, 17 Cal. Rptr. 2d 901, 908-10 (Ct. App. 1993) (validating random canine
searches of visitors’ vehicles entering prison grounds as administrative searches);
People v. Turnbeaugh, 451 N.E.2d 1016, 1019 (Ill. App. Ct. 1983) (finding
governmental interest in keeping contraband out of prisons justifies vehicle search);

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governing these searches and frequency in which officials employ
them are unclear.72
In the prison visitor context, courts try to balance visitors’ Fourth
Amendment rights with the government’s need for institutional
security.73 Two circuit court decisions exemplify how courts apply
this balancing analysis.74 Hunter v. Auger illustrates how visitors’
bodily privacy expectations must yield to security concerns within the
prison environment.75 Spear v. Sowders further diminishes visitors’
privacy expectations by extending the search’s permissible scope from
visitors’ bodies to their vehicles.76
The Court of Appeals for the Eighth Circuit evaluated the
constitutionality of strip-searching prison visitors in Hunter v. Auger.77
In Hunter, prison officials required several individuals seeking to visit
incarcerated relatives to submit to strip searches or forego visiting
their relatives.78 Two appellants submitted to the strip searches and
prison officials did not discover any contraband.79 One appellant
refused to consent to the search, and consequently lost her visiting
Daniels, 887 A.2d at 698 (discerning no reason to exclude visitor’s vehicle from
property subject to search because visitor may use car to transport drugs or other
contraband into area near prison).
72 See Prevo, 435 F.3d at 1349 (upholding vehicle search conducted after visitor
requested to leave without submitting to search); Neumeyer, 421 F.3d at 212, 215-16
(upholding vehicle search program even though no standards governed searches and
officers conducted searches as “time and complement permitted”); Estes, 17 Cal. Rptr.
2d at 908 (concluding individuals entering prison property do not impliedly consent
to search after passing sign notifying visitors that vehicles are subject to search);
Turnbeaugh, 451 N.E.2d at 1019 (upholding search of all visitors’ cars but recognizing
method of preventing contraband from entering prison not foolproof because no
contemporaneous search of vehicle’s occupants); Gadson v. State, 668 A.2d 22, 28
(Md. 1995) (invalidating prison official’s detention of visitor who indicated preference
to leave rather than submit to vehicle search).
73 See Romo, 46 F.3d at 1016 (evaluating roadblock’s constitutionality by weighing
public interest, seizure’s ability to advance public interest, and interference with
individual liberty); Spear, 71 F.3d at 633 (balancing prison’s interest in intercepting
contraband against visitor’s residual privacy interests); Hunter, 672 F.2d at 674
(weighing prison administration’s interest in preserving institutional security against
extensive intrusion on personal privacy resulting from strip search).
74 See discussion infra Part I.C (discussing balancing analysis applied in prison
visitor cases).
75 Hunter, 672 F.2d at 674-75 (requiring reasonable suspicion to strip search
prison visitors).
76 Spear, 71 F.3d at 633 (finding reasonable suspicion requirement for strip
searches is not inconsistent with permitting suspicionless vehicle searches).
77 Hunter, 672 F.2d at 674-75.
78 Id. at 670-71.
79 Id.

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privileges.80 Appellants later learned that prison officials based their
requests for these strip searches on uncorroborated, anonymous tips
that these visitors would attempt to smuggle in contraband.81
Appellants sued prison officials, claiming that these searches violated
their Fourth Amendment rights.82
The Eighth Circuit determined that these strip searches
unreasonably infringed on the prison visitors’ Fourth Amendment
rights.83
The court acknowledged the difficulties of prison
management, and encouraged administrators to employ all reasonable
means to constrict the flow of drugs, weapons, and other contraband
into the prison.84 Nevertheless, the court refused to grant prison
officials unlimited discretion in ferreting out contraband.85
Strip searches deeply intrude upon an individual’s privacy interest.86
To perform a strip search, government officials must usually possess a
search warrant and demonstrate that there is a clear indication that
they will find evidence.87 To satisfy this standard, officials must
Id. at 671.
Id. at 670-71.
82 Id. at 670.
83 Id. at 675; see Burgess v. Lowery, 201 F.3d 942, 947-48 (7th Cir. 2000) (striking
down strip search of all visitors because “prisoners themselves are subjected to such
searches before the visit, and, if the prison wants, after the visit as well”); Daugherty v.
Campbell, 33 F.3d 554, 556-57 (6th Cir. 1994) (holding that generalized suspicion of
smuggling activity does not justify strip search). But see Long v. Norris, 929 F.2d
1111, 1115 (6th Cir. 1991) (finding no clearly established constitutional right to be
free from strip and body cavity search absent probable cause or reasonable suspicion);
Thorne v. Jones, 765 F.2d 1270, 1275 (5th Cir. 1985) (reviewing constitutional
challenge to prison requirement that visitors submit to strip searches before visiting
inmates only for reasonableness).
84 Hunter, 672 F.2d at 674.
85 Id.
86 Id.; accord Daugherty, 33 F.3d at 556-57 (recognizing strip search as
embarrassing and humiliating experience, even if conducted in professional and
courteous manner); United States v. Sandler, 644 F.2d 1163, 1167 (5th Cir. 1981) (en
banc) (observing that strip, body cavity, or stomach searches embarrass person
involved); United States v. Dorsey, 641 F.2d 1213, 1217 (7th Cir. 1981) (declaring
that indignities and invasions of privacy attending strip searches are self-evident);
Tinetti v. Wittke, 479 F. Supp. 486, 491 (E.D. Wis. 1979) (“[Searches including] the
visual inspection of the anal and genital areas, ha[ve] been characterized by various
witnesses here, and by judges in some other cases, as demeaning, dehumanizing,
undignified, humiliating, terrifying, unpleasant, embarrassing, repulsive, signifying
degradation and submission.”); cf. Terry v. Ohio, 392 U.S. 1, 24-25 (1968)
(recognizing that even limited search of outer clothing for weapons is likely to be
annoying, frightening, and perhaps humiliating experience).
87 See Schmerber v. California, 384 U.S. 757, 769-70 (1966) (holding that Fourth
Amendment forbids intrusions beyond body’s surface on “mere chance that desired
80
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demonstrate that the circumstances clearly indicate that they will
uncover the desired evidence.88 While the Hunter court refused to
grant prison officials carte blanche authority to strip search visitors, it
implemented a reasonable suspicion standard instead of the clear
indication standard.89 This standard requires that officials reasonably
suspect that a visitor has concealed contraband on his or her person.90
Prison officials need to articulate specific facts and rational inferences
to support their suspicion.91 Reasonable suspicion is a lower standard
than the clear indication standard required outside the prison
setting.92 In outlining this reduced standard, the court reasoned that

evidence might be obtained”); Horton v. Goose Creek Indep. Sch. Dist. 690 F.2d 470,
478 (5th Cir. 1982) (recognizing that societal interest in bodily integrity applies with
its fullest vigor against any intrusion on human body); see also Barlow v. Ground, 943
F.2d 1132, 1137-39 (9th Cir. 1991) (determining that police violated Fourth
Amendment by warrantless drawing of arrestee’s blood); Jauregui v. Superior Court,
225 Cal. Rptr. 308, 311-12 (Ct. App. 1986) (holding that warrant authorizing search
of defendant’s person did not authorize administration of emetic, which caused
defendant to regurgitate balloons containing heroin); State v. Clark, 654 P.2d 355,
359-60 (Haw. 1982) (holding no exigent circumstances justified warrantless search of
defendant’s vaginal cavity); State v. Stevens, 495 A.2d 910, 914-15 (N.J. Super. Ct.
Law Div. 1984) (determining that law enforcement personnel’s interest in discovering
weapons or contraband cannot justify strip searching non-misdemeanor traffic
violators); Patchogue-Medford Cong. of Teachers v. Bd. of Educ., 510 N.E.2d 325,
329-30 (N.Y. 1987) (equating intrusiveness of requirement that person urinate in
government official’s presence with strip search).
88 See cases cited supra note 87 (articulating clear indication standards for
invasions beyond body’s surface).
89 Hunter, 672 F.2d at 674-75.
90 Id. at 674-75; accord Wood v. Clemmons, 89 F.3d 922, 929-30 (5th Cir. 1996)
(refusing to justify strip search absent some quantum of individualized suspicion);
Daugherty v. Campbell, 33 F.3d 554, 556-57 (6th Cir. 1994) (requiring prison
officials to possess reasonable suspicion before strip searching prison visitor).
91 Hunter v. Auger, 672 F.2d 668, 675 (8th Cir. 1982).
92 See Schmerber, 384 U.S. at 770 (“In the absence of a clear indication that in fact
such evidence will be found, these fundamental human interests require law officers
to suffer the risk that such evidence may disappear unless there is an immediate
search.”); People v. West, 216 Cal. Rptr. 195, 198 (Ct. App. 1985) (“The indication or
‘plain suggestion’ that the individual whom the authorities want to search is
concealing something within a body cavity must be ‘clear.’”); State v. Merjil, 655 P.2d
864, 867 (Haw. 1982) (citing Clark, 654 P.2d at 355) (elucidating clear indication
standard for conducting body cavity searches); State v. Palmer, 803 P.2d 1249, 1252
(Utah Ct. App. 1990) (citing Schmerber, 384 U.S. at 768-72) (finding that exigent
circumstances must justify warrantless bodily intrusion, circumstances must clearly
indicate that search will yield evidence, and officials must perform search in
reasonable manner). Courts generally interpret “clear indication” as a more
demanding standard to meet than reasonable suspicion, but less difficult than
probable cause. Accord Clark, 654 P.2d at 362 n.10; see United States v. Mendez-

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prison visitors forfeit privacy interests by willingly entering the prison
environment.93 The court explained that a reasonable suspicion
standard respected visitors’ residual privacy expectations without
creating an insurmountable barrier to institutional security.94
The Eighth Circuit implicitly compared visitors to inmates to
support its conclusion that visitors’ privacy expectations must yield to
the exigencies of institutional security.95 Despite this comparison, the
court scrupulously protected visitors from suffering a loss of privacy
commensurate with inmates.96 Prison officials may search inmates at
their discretion as long as prison officials do not use these searches to
punish or humiliate inmates.97 In contrast, prison officials must
Jimenez, 709 F.2d 1300, 1302 (9th Cir. 1983) (citing United States v. Aman, 624 F.2d
911, 913 n.1 (9th Cir. 1980)) (defining clear indication to mean more than real
suspicion but less than probable cause).
93 See Spear v. Sowders, 71 F.3d 626, 629-30 (6th Cir. 1995) (“Fourth
Amendment does not afford a person seeking to enter a penal institution the same
rights that a person would have on public streets or in a home.”); Romo v. Champion,
46 F.3d 1013, 1018 (10th Cir. 1995) (“[I]ntrusion on plaintiffs’ privacy was
significantly less than it would have been had the search been conducted outside the
context of a prison security operation.”); see also Wood, 89 F.3d at 929-30 (observing
prison officials’ need to search visitors to prevent contraband’s passage to inmates).
But see Boren v. Deland, 958 F.2d 987, 988 (10th Cir. 1992) (finding that prison
visitors cannot constitutionally suffer wholesale loss of rights, nor even one
commensurate with that suffered by inmates); Blackburn v. Snow, 771 F.2d 556, 563
(1st Cir. 1985) (“[T]hose visiting a prison cannot credibly claim to carry with them
the full panoply of rights they normally enjoy.”); Hunter, 672 F.2d at 674 (recognizing
visitors’ lower expectation of privacy within penal environment).
94 Hunter, 672 F.2d at 674.
95 See id. at 674-75 (citing Bell v. Wolfish, 441 U.S. 520, 560 (1979)).
96 See id.
97 See Covino v. Patrissi, 967 F.2d 73, 79 (2d Cir. 1992) (upholding random
visual body cavity searches as reasonably related legitimate penological interests
despite finding that prisoners retain limited right to bodily privacy); Goff v. Nix, 803
F.2d 358, 360 (8th Cir. 1986) (upholding requirement that inmate submit to visual
body cavity search as condition of movement outside living unit but enjoining verbal
harassment during searches); Powell v. Cusimano, 326 F. Supp. 2d 322, 335 (D.
Conn. 2004) (observing that inmates retain limited right to bodily privacy under
Fourth Amendment); Ostrander v. Horn, 145 F. Supp. 2d 614, 620 (M.D. Pa. 2001)
(citing Bell, 441 U.S. at 520) (noting that inmates do not have Fourth Amendment
right to be free from strip searches, but requiring that officials conduct search in
reasonable manner); see also Hudson v. Palmer, 468 U.S. 517, 525-26 (1984) (holding
inmate does not have reasonable expectation of privacy in his prison cell entitling him
to Fourth Amendment protection against unreasonable searches and seizures); Wolff
v. McDonnell, 418 U.S. 539, 556 (1974) (recognizing need for major restrictions on
prisoners’ rights in seeking “mutual accommodation between [prisons’] institutional
needs and objectives and the provisions of the Constitution that are of general
application”); Price v. Johnston, 334 U.S. 266, 285 (1948) (remarking that lawful

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articulate facts giving rise to reasonable suspicion to invasively search
visitors.98 Although the Eighth Circuit preserved visitors’ privacy
expectations, other courts have been less protective.99 In considering a
similar search, the Sixth Circuit Court of Appeals expanded prison
officials’ authority to search prison visitors in Spear v. Sowders.100
In Spear, a confidential prison informant notified prison officials
that an inmate, Wade, received drugs every time an unrelated woman
visited him.101 After concluding that Spear was Wade’s only visitor
fitting this description, officials authorized a strip and body cavity
search of Spear at her next visit.102 The next time Spear arrived for a
visit, prison officials informed her that she could not visit Wade unless
she submitted to the search.103 Prison officials told Spear that if she
did not consent to the search, they would detain her until they
obtained a warrant.104 Wishing to visit Wade and avoid detention,
Spear consented and allowed officials to search her clothing, purse,
imprisonment justifies retraction of many rights and privileges available to ordinary
citizen); Willis v. Artuz, 301 F.3d 65, 67 (2d Cir. 2002) (holding that Fourth
Amendment proscription against unreasonable searches does not apply within prison
cell); Murcia v. County of Orange, 226 F. Supp. 2d 489, 498 (S.D.N.Y. 2002)
(requiring that searches performed on incarcerated individuals be reasonable). See
generally 2 MICHAEL R. MUSHLIN, RIGHTS OF PRISONERS § 8.19 (3d ed. 2005) (noting
that prisoners’ rights are not coextensive with those of non-prisoners because of
countervailing security considerations).
98 See Wood v. Clemmons, 89 F.3d 922, 929-30 (5th Cir. 1996) (refusing to
justify strip search absent some quantum of individualized suspicion); Daugherty v.
Campbell, 33 F.3d 554, 556-57 (6th Cir. 1994) (requiring prison officials to possess
reasonable suspicion before strip searching prison visitor); Hunter, 672 F.2d at 674-75
(holding that Constitution mandates requiring reasonable suspicion to strip search
prison visitors); see also MUSHLIN, supra note 97, § 8.7 (noting that strip search is
proper where officials reasonably suspect that visitors will be bringing inmates
contraband).
99 See United States v. Prevo, 435 F.3d 1343, 1347-48 (11th Cir. 2006) (refusing
to entertain defendant’s suggestions of “less intrusive” means of keeping contraband
out of work release center); Spear v. Sowders, 71 F.3d 626, 632-33 (6th Cir. 1995)
(allowing prison officials to conduct suspicionless vehicle searches of visitor’s car
without providing opportunity to leave rather than submit to search); People v.
Turnbeaugh, 451 N.E.2d 1016, 1019 (Ill. App. Ct. 1983) (rejecting argument that
“[s]earching incoming cars was not a sufficiently reasonable method of detecting
incoming contraband, because of routine extensive searches of the person of each
visitor to the institution, which would take place with or without vehicle searches”).
100 See Spear, 71 F.3d at 632-33 (permitting strip searches based on reasonable
suspicion and provisionally upholding suspicionless vehicle search).
101 Id. at 629.
102 Id.
103 Id.
104 Id.

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and car.105 The search did not reveal any contraband.106 Spear sued
prison officials, claiming that the strip search and search of her car
violated her Fourth Amendment rights.107
The Sixth Circuit determined that the confidential prison
informant’s tip established reasonable suspicion.108 This level of
suspicion allowed prison officials to require Spear to consent to the
search as a condition for admittance.109 However, the prison official’s
threat to detain Spear vitiated her consent and violated her
constitutional right to be free from detention.110 The court held that
prison officials must permit a visitor to leave the prison grounds
without submitting to the search because the government’s power to
intrude hinges on the visitor’s request for access.111
In its analysis, the Sixth Circuit separated the search of Spear’s
vehicle from the strip search.112 The court noted that the Fourth
Amendment protects an individual’s privacy interest in an automobile
and usually requires that officers possess probable cause to search a
vehicle.113 However, the court declined to require that prison officials
have individualized suspicion to search a car on prison grounds.114
The court noted that contraband hidden in a car potentially threatens
Id.
Id.
107 Id. at 628.
108 Id. at 631.
109 Id. To establish reasonable suspicion, the court noted that this confidential
informant had been a reliable source of information in the past and that Wade had an
extensive history of drug possession violations in prison. Id.
110 Id. at 632.
111 Id.; see Marriott ex rel. Marriott v. Smith, 931 F.2d 517, 520 (8th Cir. 1991)
(rejecting application of prison visitor exception to search of visitor who had finished
visit and no longer could smuggle contraband into jail); Gadson v. State, 668 A.2d 22,
28 (Md. 1995) (striking down detention of prison visitors who indicate preference to
leave rather than submit to vehicular canine sniff); cf. United States v. Davis, 482 F.2d
893, 910-11 (9th Cir. 1973) (validating airport screening searches only if they
recognize individual’s right to avoid search by electing not to board aircraft). But see
United States v. Prevo, 435 F.3d 1343, 1347-48 (11th Cir. 2006) (upholding search of
visitor’s car at correctional facility even though visitor requested to leave without
submitting to search).
112 Spear, 71 F.3d at 632-33.
113 Id. at 632; see California v. Acevedo, 500 U.S. 565, 579 (1991) (applying same
Fourth Amendment standards to all vehicle searches regardless of particular area
searched, including searches of car’s trunk); Arizona v. Hicks, 480 U.S. 321, 326-27
(1987) (holding government actors must have probable cause to search car in
traditional law enforcement context); California v. Carney, 471 U.S. 386, 390 (1985)
(recognizing that Constitution protects individual’s privacy interest in automobile).
114 Spear, 71 F.3d at 632-33.
105
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institutional order at all times after the car enters the grounds because
prisoners may gain access to the parking lot.115 Balancing the search’s
minor intrusion against the government’s interest in institutional
security, the court refused to find searches of prison visitors’ cars per
se unreasonable.116
The Sixth Circuit required prison officials to provide Spear an
opportunity to avoid the strip search by foregoing her visit and leaving
the prison grounds.117 However, the court did not require that officials
afford Spear the same opportunity to avoid the vehicle search.118 In
this way, Spear extended the search’s permissible scope from visitors’
bodies to their vehicles.119
Courts defer to prison administrators’ expert judgment when
reviewing prison regulations because administrators are familiar with
the institution’s needs.120 This deference originated in Bell v. Wolfish,
where the Supreme Court cautioned federal courts against interfering
with internal prison management.121 Although Bell concerned pretrial
detainees, courts analogize visitors’ rights to inmates’ rights based on
the government’s interest in preserving institutional order.122 In

Id. at 633. The court neglected to explain how an inmate could gain access to
the parking lot. Id.
116 Id. Although the Sixth Circuit refused to prohibit suspicionless searches of
prison visitors vehicles, the court declined to resolve whether the search of Spear’s car
was unreasonable. Id. The Sixth Circuit remanded this question to the district court.
Id. at 633-34 (instructing district court to consider signs notifying entrants that car
may be searched, prisoner’s access to cars, or whether officials “subjected the car to
such a lengthy and intrusive search that it was unreasonable”).
117 See id. at 632 (requiring prison officials to give visitor opportunity to depart
rather than submit to strip and body cavity search).
118 See id. at 633 (finding no clearly established right to leave prison facility
without submitting to search where sign notifies visitor that her car would be
searched).
119 See id. at 632-33 (permitting strip searches based on reasonable suspicion and
provisionally upholding vehicle search).
120 See Bell v. Wolfish, 441 U.S. 520, 547 (1979) (according “wide-ranging
deference” to prison administrators in implementing policies that preserve internal
order and discipline); Jones v. N.C. Prisoners’ Labor Union, 433 U.S. 119, 126 (1977)
(giving wide-ranging deference to prison administrators because of challenging and
strenuous realities of running penal institution); Pell v. Procunier, 417 U.S. 817, 827
(1974) (recognizing whether prison restrictions reasonably relate to institutional
order are peculiarly within corrections officials’ professional expertise); Procunier v.
Martinez, 416 U.S. 396, 404 (1974) (“[F]ederal courts have adopted a broad hands-off
attitude toward problems of prison administration.”).
121 See Bell, 441 U.S. at 548 (commenting that prison administrator has “better
grasp of his domain than the reviewing judge”).
122 See discussion supra this Part (citing institutional security to justify visitor
115

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Hunter, the Eighth Circuit employed this analogy to allow prison
officials to justify invasive bodily searches of visitors with lower
indicia of suspicion.123 In Spear, the Sixth Circuit extended prison
administrators’ authority, allowing officials to search visitors’
vehicles.124
In Neumeyer v. Beard, the Third Circuit upheld suspicionless
searches of prison visitors’ vehicles based on the prison’s compelling
interest in intercepting contraband.125 The court did not scrutinize the
suspicionless search’s ability to narrowly meet the proffered
institutional interest like in Edmond.126 Instead, the Third Circuit
followed the Supreme Court’s holding in Bell and deferred to prison
officials’ expert judgment in matters of institutional security.127
II.

NEUMEYER V. BEARD

In Neumeyer, prison officials in Pennsylvania randomly searched
visitors’ vehicles to ensure prohibited items did not enter the prison.128
This program granted prison officials unbridled discretion in
conducting searches and authorized officials to search areas that did
not directly implicate institutional security.129 In evaluating this
program, the Third Circuit did not assess the program’s ability to keep
contraband from entering the prison.130 Instead, the court deferred to
the prison administrators’ expert judgment.131
A. Facts and Procedure
In Neumeyer, the Pennsylvania Department of Corrections allowed
prison officials to search vehicles parked on prison grounds with the

regulations).
123 See Hunter v. Auger, 672 F.2d 668, 674 (8th Cir. 1982) (interpreting goal of
safeguarding institutional security to allow prison officials to search inmates and
visitors).
124 See Spear v. Sowders, 71 F.3d 626, 633 (6th Cir. 1995) (upholding vehicle
search even if visitor cannot elect to avoid search by leaving).
125 Neumeyer v. Beard, 421 F.3d 210, 214-15 (3d Cir. 2005).
126 See id. at 215-16 (upholding suspicionless searches despite program’s potential
for abuse).
127 See id. at 214 (upholding suspicionless searches of visitors’ vehicles based on
substantial interest in preserving internal order).
128 Id. at 211.
129 Id. at 212.
130 Id. at 215-16.
131 Id. at 214.

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operator’s consent.132 If a visitor refused to consent to the search, he
or she could not access the facility.133 Officials did not request to
search every visitor’s vehicle.134 Further, no written standards
governed these searches; officers conducted them randomly at their
discretion as time permitted.135 An officer would then report any
contraband or evidence of illegal activity he or she discovered to state
police.136
Plaintiffs Teresa Neumeyer and her husband traveled to the state
prison approximately ten times to visit Neumeyer’s father, an inmate
incarcerated in the facility.137 On two of these occasions, officers
requested permission to search the Neumeyers’ vehicle.138 Both
searches failed to yield any contraband or evidence of illegal activity.139
The Neumeyers alleged that the prison’s policy of subjecting
random vehicles to a search as a condition of visiting the prison
violated the Fourth Amendment.140 The District Court for the Middle
District of Pennsylvania granted summary judgment in favor of the
prison officials.141 Finding neither a constitutional nor statutory right
to visit prison inmates, the district court declined to scrutinize the
vehicle search under the Fourth Amendment.142
B. Holding and Rationale
The Court of Appeals for the Third Circuit affirmed the district
court’s summary judgment.143 The court held that the policy of
subjecting prison visitors’ vehicles to random suspicionless searches
Prison officials
did not violate the Fourth Amendment.144
implemented these searches as part of the prison’s overall security

Id. at 211.
Id. at 211-12.
134 Id. at 212.
135 Id.
136 Id.
137 Id.
138 Id.
139 Id.
140 Id. at 211.
141 Neumeyer v. Beard, 301 F. Supp. 2d 349, 353 (M.D. Pa. 2004).
142 Id. at 351-52; see Ky. Dep’t of Corr. v. Thompson, 490 U.S. 454, 461 n.3 (1989)
(expressing no opinion on whether Due Process Clause entitles prisoners to
visitation).
143 Neumeyer, 421 F.3d at 216.
144 Id.
132
133

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regime.145 By keeping contraband out of the prison, these searches
helped to fulfill the compelling governmental interest in maintaining
internal order.146 The court held that this compelling interest
warranted the incidental intrusion occasioned by the vehicle search.147
The court noted that the guards’ discretion in selecting visitors’
vehicles to search created more potential for abuse than a program
where guards searched all entering vehicles.148 However, the court
found no evidence that officers singled out individuals on improper
bases like race or ethnicity.149 The court then declined to invalidate
this selective scheme, noting that personnel limitations or other
constraints could make screening all visitors impracticable.150
The Third Circuit upheld suspicionless searches of visitors’ vehicles
as reasonable even though no standards governed the guards’ selection
of which vehicles to search.151 The Third Circuit never scrutinized
whether the vehicle searches would be an effective method to
intercept contraband.152 Instead, the court deferred to the prison
administrators’ claim that these searches served the government’s
compelling interest in maintaining internal order.153 Notably, many
items inside a visitor’s car never come near inmates; visitors do not
take most items inside their car into the facility for the visit.154 These
vehicle searches exceed the institutional security rationale because
they encompass numerous items that cannot legitimately threaten
institutional order.155
III. ANALYSIS
In reviewing the searches of prison visitors’ vehicles in Neumeyer,
the Third Circuit should have analyzed whether vehicle searches

Id. at 214-15.
Id.
147 Id.
148 Id. at 215.
149 Id. at 215-16.
150 Id. at 215.
151 Id. at 215-16.
152 Id. at 214-15.
153 Id.
154 See id. at 212 (“[T]here does not exist any information or allegations in any
SCIH/DOC records or reports indicating that the Neumeyers have brought . . .
unlawful contraband into the SCIH or possessed the same in their vehicle.”).
155 See discussion infra Part III.A (contending that suspicionless vehicle searches
exceed prison’s interest in safeguarding institutional order).
145
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effectively addressed the problem of contraband in prisons.156 The
court should have found that these searches exceeded the
governmental interest in safeguarding internal order and struck down
the regulation.157 Thus, the Third Circuit should have required that
prison officials reasonably suspect that visitors’ vehicles contain
concealed contraband before searching them.158 Other courts require
that prison officials satisfy this standard to search prison employees’
vehicles.159 This criterion allows officials to safeguard institutional
security without unnecessarily infringing on visitors’ Fourth
Amendment rights.160 Additionally, the reasonable suspicion standard
encourages people to visit prisons, which benefits inmates and
society.161
A. Suspicionless Vehicle Searches of Prison Visitors Impermissibly
Exceed an Institution’s Interest in Intercepting Contraband
In Neumeyer, the court used the prison’s compelling interest in
keeping contraband out of prisons to justify its decision to uphold
suspicionless searches of visitors’ vehicles.162 Despite recognizing this

156 See discussion infra Part III.A (contending that Third Circuit erred in neglecting
to consider suspicionless vehicle search’s effectiveness in relation to other prison
searches).
157 See discussion infra Part III.A (arguing that suspicionless vehicle searches
impermissibly exceed prison’s interest in intercepting contraband).
158 See discussion infra Part III.A (contending that Third Circuit erred in upholding
suspicionless vehicle searches of prison visitors).
159 See Wiley v. Dep’t of Justice, 328 F.3d 1346, 1353 (Fed. Cir. 2003) (requiring
that warden reasonably suspect that employee kept gun in his vehicle parked in
prison’s lot to justify search); McDonell v. Hunter, 809 F.2d 1302, 1309 (8th Cir.
1987) (requiring reasonable suspicion to justify searching prison employee’s vehicle).
160 See Wiley, 328 F.3d at 1352-53 (articulating reasonable suspicion standard to
justify searching prison employee’s vehicle); Leverette v. Bell, 247 F.3d 160, 167 (4th
Cir. 2001) (recognizing that prison employee does not forfeit all privacy rights by
accepting employment); McDonell, 809 F.2d at 1309 (requiring reasonable suspicion
to justify searching prison employee’s vehicle); Sec. & Law Enforcement Employees v.
Carey, 737 F.2d 187, 202 (2d Cir. 1984) (“[E]ven within the unique confines of
correctional facilities, society recognizes that correctional officers . . . have
expectations — albeit diminished — that they will be free from excessive and
unwarranted intrusions based upon unrestrained, standardless exercises of authority
by prison administrators.”); Clark v. State, 395 So. 2d 525, 528 (Fla. 1981) (holding
that shakedown search of prison guard involved only minimal intrusion compared
with state’s interest in keeping contraband out of prison).
161 See discussion infra Part III.C (describing visitation’s positive impact on inmates
and society).
162 Neumeyer v. Beard, 421 F.3d 210, 214-15 (3d Cir. 2005).

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governmental interest, the court never evaluated whether these
searches exceeded their professed purpose and unnecessarily infringed
on visitors’ Fourth Amendment rights.163 The Third Circuit should
have analyzed the search’s efficacy in keeping contraband out of
prisons and considered whether other searches already fulfilled this
need.164
Most correctional facilities require prison visitors to submit to
routine searches as a condition of entry, such as a pat-down search or
metal detector sweep.165 Prison officials use these searches to prevent
visitors from transporting drugs, weapons, or other contraband to
inmates inside the facility.166 These searches closely match the
government’s security interest in intercepting contraband because they
focus on ferreting out contraband actually carried into the facility.167
The Neumeyer court should have evaluated the search’s ability to
interdict contraband. It should have followed the Supreme Court’s
approach and scrutinized the suspicionless search program’s ability to
address a governmental interest.168 In Edmond, the government’s
Id.
Id.
165 See Spear v. Sowders, 71 F.3d 626, 630 (6th Cir. 1995) (allowing officials to
subject visitors to some searches, such as pat-down search or metal detector sweep, as
condition of visitation); Shields v. State, 16 So. 85, 86 (Ala. 1894) (upholding searches
of all persons prior to visitation, but noting that sheriff cannot search visitor against
his will); People v. Whisnant, 303 N.W.2d 887, 891 (Mich. Ct. App. 1981)
(upholding requirement that visitor submit to pat-down search prior to entry);
MUSHLIN, supra note 97, § 8.7 (describing rationales used to uphold pat-down
searches); STERN, supra note 2, at 123-24 (noting that prison officials question nearly
all visitors about items carried in, search their belongings, and subject visitors to patdown search).
166 People v. Thompson, 523 P.2d 128, 130 (Colo. 1974) (citing danger of visitors
transporting contraband into penitentiary to justify requirement that visitors consent
to search); Wells v. State, 402 So. 2d 402, 404 (Fla. 1981) (noting that prison visitors
expect to submit to search for weapons or other contraband); Thorne v. Jones, 585 F.
Supp. 910, 918 (M.D. La. 1984) (reasoning that prisons’ peculiar security problems
permit requiring visitors to undergo pat-down search).
167 See cases cited supra note 166 (describing routine entry searches designed to
intercept contraband).
168 See United States v. Edmond, 531 U.S. 32, 43 (2000) (refusing to suspend
individualized suspicion requirement where governmental authorities primarily
pursue general crime control ends); Mich. Dep’t of State Police v. Sitz, 496 U.S. 444,
451 (1990) (citing sobriety checkpoint’s statistics to justify program’s
implementation); Delaware v. Prouse, 440 U.S. 648, 659 n.18 (1979) (rejecting state
interest in interdicting unlawful narcotics to justify checkpoints because stop program
actually serves general interest in crime control); United States v. Martinez-Fuerte,
428 U.S. 543, 554, 561-62 (1976) (citing apprehension rates to demonstrate program’s
effectiveness).
163
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stated purpose for the checkpoint program was confiscating illegal
drugs.169 In its opinion, the Supreme Court recognized the drug
problem’s severity and the complex law enforcement problems created
by the drug trade.170 The Court struck down the program, however,
despite the government’s compelling interest in disrupting the sale and
transportation of illegal drugs.171 The Court concluded that the
program swept too broadly.172 Rather than narrowly focusing on
interdicting narcotics, the program served to detect ordinary criminal
wrongdoing.173
In Neumeyer, the visitor vehicle searches exceeded the government’s
interest in keeping contraband out of the prison. These vehicle
searches allowed prison officials to search items that never entered the
prison’s walls.174 Although safeguarding the prison grounds may be a
legitimate government interest, items outside the prison’s walls do not
pose the same imminent threat to prison security as items carried
inside.175 Rather than merely preventing visitors from transmitting
contraband to inmates, prison officials use vehicle searches to look for
evidence of ordinary criminal wrongdoing. In Neumeyer, prison
officials reported the discovery of drugs or other evidence of criminal
behavior to the police.176 Even if the visitor never intended to transmit
these items to an inmate, the visitor could face prosecution.177
Additionally, many states — including Pennsylvania — impose
harsher penalties for transporting drugs into a corrections facility than

Edmond, 531 U.S. at 40.
Id. at 42-43.
171 Id. at 44.
172 Id. at 44-46.
173 Id.
174 See Neumeyer v. Beard, 421 F.3d 210, 214 (3d Cir. 2005); see also United States
v. Prevo, 435 F.3d 1343, 1347-48 (11th Cir. 2006) (refusing to entertain less intrusive
means of keeping contraband out of prison); State v. Daniels, 887 A.2d 696, 698 (N.J.
Super. Ct. App. Div. 2005) (declining to consider defendant’s claim that it is
“physically impossible for any contraband to be transported directly from a visitor’s
car to an inmate, absent a human intermediary, who is subject to a mandatory
personal search”).
175 But see Prevo, 435 F.3d at 1347 (declining to consider defendant’s argument
that vehicle searches are unreasonable because searches of everyone entering facility
already achieve institutional goal).
176 Neumeyer, 421 F.3d at 212.
177 See id. at 215 (recognizing that vehicle search could result in criminal
prosecution); see also People v. Turnbeaugh, 451 N.E.2d 1016, 1021 (Ill. App. Ct.
1983) (finding that defendant committed offense of bringing contraband “into” penal
institution, even though defendant not actually inside entrance gates).
169
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possessing drugs outside prison grounds.178 Thus, the government can
impose enhanced penalties if these searches yield evidence of criminal
conduct, even though the contraband might never have threatened
prison security.179
Proponents of the Neumeyer court’s view might support upholding
the suspicionless search program even if they believed that the
searches swept broader than the interest in institutional order.180
When considering inmate challenges to prison regulations, the
Supreme Court cautions federal courts to refrain from secondguessing prison policies.181 Consequently, lower courts hesitate to
178 18 PA. CONS. STAT. § 5123 (2005) (defining as second degree felony with two
year minimum prison sentence); PA. DEP’T OF CORR., HANDBOOK FOR THE FAMILIES AND
FRIENDS OF PENNSYLVANIA DEPARTMENT OF CORRECTIONS INMATES 23-25 (2005)
(outlining penalties for transporting contraband into correctional facility); see, e.g.,
ARIZ. REV. STAT. ANN. § 13-2505 (2005) (defining as felony); CAL. PENAL CODE § 4573
(West 2005) (constituting felony punishable by imprisonment for two to four years);
MINN. STAT. § 243.55 (2005) (defining as felony punishable by imprisonment for term
less than ten years); OHIO REV. CODE ANN. § 2921.36 (West 2005) (imposing
mandatory prison term).
179 See supra note 177 and accompanying text (specifying how suspicionless
vehicle searches exceed institutional security rationale).
180 See Whitley v. Albers, 475 U.S. 312, 321-22 (1986) (leaving internal security to
prison administrators’ discretion unless action is in bad faith or without legitimate
purpose); Johnson v. Avery, 393 U.S. 483, 486 (1969) (subjecting state detention
facility’s administration to federal authority only where paramount federal
constitutional or statutory rights supervene); Prevo, 435 F.3d at 1347 (deferring to
corrections officials’ judgment that two layers of searches are better than just one);
Tubwell v. Griffith, 742 F.2d 250, 252 (5th Cir. 1984) (respecting prison
administrators’ decisions unless they exaggerate security and disciplinary
considerations); Newman v. Alabama, 559 F.2d 283, 291 (5th Cir. 1977) (describing
prison officials’ duty to take all reasonable precautions to ensure that visitors do not
smuggle in weapons or other harmful contraband); Smith v. Schneckloth, 414 F.2d
680, 681 (9th Cir. 1969) (observing that reasonable action within correctional
authorities’ wide discretion does not violate prisoner’s constitutional rights); Walker v.
Pate, 356 F.2d 502, 504 (7th Cir. 1966) (declining to meddle with state prison’s
internal rules and regulations except in exceptional circumstances); Tabor v.
Hardwick, 224 F.2d 526, 529 (5th Cir. 1955) (cautioning courts from interfering with
prison discipline except in extreme cases); see also Turner v. Safley, 482 U.S. 78, 90
(1987) (refusing to impose least restrictive alternative test on prison officials).
181 See Sandin v. Conner, 515 U.S. 472, 482 (1995) (instructing federal courts to
afford appropriate deference and flexibility to state officials trying to manage volatile
prison environment); Whitley, 475 U.S. at 321-22 (deferring to prison officials’
judgment in implementing security measures that respond to actual confrontations
and prophylactic measures intended to prevent disciplinary breaches); Rhodes v.
Chapman, 452 U.S. 337, 350 n.14 (1981) (leaving prisons’ internal security to prison
administrators’ discretion); Bell v. Wolfish, 441 U.S. 520, 547 (1979) (“Prison
administrators . . . should be accorded wide-ranging deference in the adoption and
execution of policies and practices that in their judgment are needed to preserve

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restrict prison administrators’ authority to implement regulations
designed to safeguard prison order and security.182
The Supreme Court deferred to prison administrators’ judgments
when reviewing prisoner restrictions, and arguably courts should defer
to administrators’ judgments in the visitor context as well.183 Visitor
vehicle searches rationally relate to the goal of keeping contraband out
of the facility.184 If visitors cannot enter the prison grounds with
contraband in their cars, they cannot transport contraband into the
facility itself.185 Recognizing the problem of contraband in prisons, the
internal order and discipline and to maintain institutional security.”); Jones v. N.C.
Prisoners’ Labor Union, 433 U.S. 119, 126 (1977) (recognizing wide ranging
deference to prison officials); Pell v. Procunier, 417 U.S. 817, 827 (1974) (“[Prison
regulations] are peculiarly within the province and professional expertise of
corrections officials, and, in the absence of substantial evidence . . . indicat[ing] that
the officials have exaggerated their response to these considerations, courts should
ordinarily defer to their expert judgment in such matters.”); Procunier v. Martinez,
416 U.S. 396, 405 (1974) (“[C]ourts are ill equipped to deal with the increasingly
urgent problems of prison administration and reform. Judicial recognition of that fact
reflects no more than a healthy sense of realism. Moreover, where state penal
institutions are involved, federal courts have a further reason for deference to the
appropriate prison authorities.”); see also Johnson, 393 U.S. at 486 (deferring to state
prison administrators, yet reserving right to invalidate prison regulations that conflict
with inmates’ federal constitutional or statutory rights).
182 Conyers v. Abitz, 416 F.3d 580, 584 (7th Cir. 2005) (deferring to prison
officials’ judgment in evaluating measures aimed at preserving institutional order and
discipline); Bahrampour v. Lampert, 356 F.3d 969, 973 (9th Cir. 2004) (deferring to
state prison officials in day-to-day prison operations due to separation of powers and
federalism concerns); Stanley v. Henson, 337 F.3d 961, 966 (7th Cir. 2003) (citing
Bell, 441 U.S. at 547) (affording prison officials’ decisions substantial — though not
complete — deference); Ort v. White, 813 F.2d 318, 322 (11th Cir. 1987) (“[I]n
evaluating the challenged conduct of prison officials, a court must keep in mind the
paramount concerns of maintaining order and discipline in an often dangerous and
unruly environment.”); Tubwell, 742 F.2d at 252 (upholding prison administrators’
decisions unless unreasonably exaggerated in response to security and discipline
considerations); Wolfish v. Levi, 573 F.2d 118, 125 (2d Cir. 1978) (“Concern with
minutiae of prison administration can only distract the court from detached
consideration of the one overriding question presented to it: does the practice or
condition violate the Constitution?”); Newman, 559 F.2d at 286 (noting that prison
administrators, not courts, must be permitted to make difficult judgments concerning
prison operations); Walker, 356 F.2d at 504 (“Discipline reasonably maintained in
State prisons is not under the supervisory direction of federal courts.”); Carter v.
Cuyler, 415 F. Supp. 852, 856 (E.D. Pa. 1976) (declining to interfere with prison
discipline unless paramount federal constitutional or statutory rights intervene).
183 See supra Part I.C (analogizing regulation of prisoners and visitors based on
compelling interest in institutional security).
184 Neumeyer v. Beard, 421 F.3d 210, 214-15 (3d Cir. 2005) (finding search
rationally related to penal interest in intercepting contraband).
185 See Prevo, 435 F.3d at 1345-46 (searching automobiles entering prison property

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Third Circuit might have allowed prison officials to conduct these
vehicle searches without probable cause in Neumeyer.186 The court
may have believed that narrower regulations could not effectively
address the intractable problem of contraband in prisons.187 By
conducting a broader search, prison administrators may uncover
contraband that goes undetected during a metal detector sweep or patdown search.188 Additionally, the threat of a suspicionless vehicle
search may deter some visitors who would otherwise try to smuggle
contraband to inmates.189 Thus, the Neumeyer court might have
upheld a prophylactic regulation that exceeded the prison’s security
interest in interdicting contraband actually carried into the facility.190
is obvious way to keep contraband away from prisons); Spear v. Sowders, 71 F.3d 626,
633 (6th Cir. 1995) (“[Contraband] secreted in a car, to which prisoners may have
access, is a potential threat at all times after the car enters the grounds.”); People v.
Turnbeaugh, 451 N.E.2d 1016, 1019 (Ill. App. Ct. 1983) (rejecting argument that
“[s]earching incoming cars was not a sufficiently reasonable method of detecting
incoming contraband, because of routine extensive searches of the person of each
visitor to the institution, which would take place with or without vehicle searches”);
State v. Daniels, 887 A.2d 696, 698 (N.J. Super. Ct. App. Div. 2005) (reasoning that
automobile searches rationally relate to institution’s interest in detecting and
preventing flow of drugs and contraband into prison); State v. Putt, 955 S.W.2d 640,
646 (Tenn. Crim. App. 1997) (“[I]t is hardly a stretch to imagine a visitor leaving a
contraband item in the parking lot for an inmate to recover at a later time.”).
186 See supra notes 45-47 and accompanying text (discussing danger contraband
poses in penal environment).
187 See supra notes 45-47 and accompanying text (discussing danger contraband
poses in penal environment).
188 See Prevo, 435 F.3d at 1347 (deferring to officials’ judgment that two layers of
searches, “double-tier of deterrence,” are better than just one); Turnbeaugh, 451
N.E.2d at 1019 (rejecting argument that “[s]earching incoming cars was not a
sufficiently reasonable method of detecting incoming contraband, because of routine
extensive searches of the person of each visitor to the institution, which would take
place with or without vehicle searches”); Daniels, 887 A.2d at 698 (reasoning that
automobile searches rationally relate to institution’s interest in detecting and
preventing flow of drugs and contraband into prison).
189 See Prevo, 435 F.3d at 1347 (“More searches, or the threat of them, provide
more security than fewer searches do.”); Estes v. Rowland, 17 Cal. Rptr. 2d 901, 920
n.20 (Ct. App. 1993) (noting search’s potential deterrent effect because visitor never
knows when vehicle will be subject to search).
190 See Whitley v. Albers, 475 U.S. 312, 321-22 (1986) (deferring to prison security
measure taken in responding to actual confrontation with riotous inmates and
prophylactic measure intended to reduce breaches of discipline); Prevo, 435 F.3d at
1347 (deferring to prison administrators’ judgment and refusing to consider
defendant’s claim that entrance searches of visitors and inmates are sufficient);
Turnbeaugh, 451 N.E.2d at 1019 (reasoning that vehicle searches of entering cars was
reasonable method to detect contraband, despite “routine extensive searches of person
of each visitor”); Daniels, 887 A.2d at 698 (declining to consider defendant’s claim

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To accept this argument and uphold these suspicionless searches,
however, the Third Circuit would have to ignore the fundamental
differences between visitors and inmates.191 In deferring to prison
administrators’ expertise, courts overlook the critical distinction
between prison visitors and inmates: visitors retain the liberties that
inmates have lost.192
Courts recognize that visitors retain
constitutional protections inside prison walls.193 The constriction of
these rights necessitated by the penal environment occupies much of
the courts’ attention.194 Rather than focusing on visitors’ retained
that it was impossible to directly transport contraband from visitor’s car to inmate
without human intermediary); see also Turner v. Safley, 482 U.S. 78, 90-91 (1987)
(refusing to impose least restrictive alternative test on prison regulations); Tubwell v.
Griffith, 742 F.2d 250, 252 (5th Cir. 1984) (upholding prison administrators’
decisions unless exaggerated in response to security considerations); Newman v.
Alabama, 559 F.2d 283, 291 (5th Cir. 1977) (describing prison officials’ duty to take
all reasonable precautions to ensure that visitors do not smuggle in weapons or other
harmful contraband).
191 See infra note 192 (describing fundamental distinction between prisoners and
visitors).
192 While lower courts seemingly overlook this distinction when assessing visitors’
Fourth Amendment rights, the Supreme Court recognized it in the First Amendment
context. Procunier v. Martinez, 416 U.S. 396, 408-09 (1974). In reviewing a First
Amendment challenge to censorship of inmate mail, the Court did not consider the
extent to which free speech rights survive incarceration. Id. at 408. Regardless of the
prisoner’s claim, the Court found that the non-prisoner “interest [in correspondence]
is grounded in the First Amendment’s guarantee of freedom of speech.” Id. Because
of prison regulation’s consequent effect on the non-prisoner correspondent, the Court
struck down the regulation, thereby “reject[ing] any attempt to justify censorship of
inmate correspondence merely by reference to certain assumptions about the legal
status of prisoners.” Id. at 409. Commentators have suggested that the Court should
apply this framework when considering restrictions on prison visitation. See Virginia
L. Hardwick, Punishing the Innocent: Unconstitutional Restrictions on Prison Marriage
and Visitation, 60 N.Y.U. L. REV. 275, 297 (1985) (noting that courts do not consider
non-prisoner family members’ rights when failing to find constitutional right of
visitation).
193 See Boren v. Deland, 958 F.2d 987, 988 (10th Cir. 1992) (“[V]isitors do not
abandon their constitutional rights when they enter a penitentiary.”); cases cited infra
note 194 (describing how visitors’ constitutional rights are diminished by prison
environment’s exigencies).
194 See Wood v. Clemmons, 89 F.3d 922, 929 (5th Cir. 1996) (finding that
reasonable suspicion standard strikes balance between visitors’ legitimate privacy
interests and institutional order); Spear v. Sowders, 71 F.3d 626, 629-30 (6th Cir.
1995) (“[T]he Fourth Amendment does not afford a person seeking to enter a penal
institution the same rights that a person would have on public streets or in a home.”);
Romo v. Champion, 46 F.3d 1013, 1018 (10th Cir. 1995) (acknowledging that prison
visitor possesses legitimate expectation of privacy but noting that exigencies of penal
environment diminish this expectation); Daugherty v. Campbell, 935 F.2d 780, 786
(6th Cir. 1991) (finding that prison visitor retains legitimate expectation of privacy

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constitutional protections, courts concentrate on how institutional
security justifies various visitor searches that courts would not uphold
outside the penal environment.195 Instead of deferring equally to
prison administrators’ exercise of authority over inmates and visitors,
courts should liken visitors to other non-prisoners in similar
environments.196 If the Third Circuit analogized visitors to other nonprisoners, the court would have struck down the suspicionless vehicle
searches as exceeding the prison’s interest in intercepting
contraband.197
B. Courts Should Apply the Same Standard to Searches of Prison
Visitors’ Vehicles That They Apply to Prison Employees’ Vehicles
Strip searching prison visitors or prison employees requires
reasonable suspicion.198 Courts afford prison employees more privacy
protection in vehicle searches than visitors.199 In Neumeyer, the court
approved a policy that allowed prison officials to conduct
suspicionless searches of visitors’ vehicles.200 In contrast, prison
officials must reasonably suspect that a prison employee’s car contains
contraband to conduct a search.201 This standard allows prison

diminished by exigencies of prison security); Blackburn v. Snow, 771 F.2d 556, 563
(1st Cir. 1985) (“[T]hose visiting a prison cannot credibly claim to carry with them
the full panoply of rights they normally enjoy. But neither may they constitutionally
be made to suffer a wholesale loss of rights — nor even one commensurate with that
suffered by inmates.”).
195 See cases cited supra note 194 (describing how prison security diminishes
prison visitors’ reasonable expectation of privacy).
196 See discussion infra Part III.B (contending that courts should apply same
standards to searches of prison visitors and employees).
197 See discussion infra Part III.B (arguing that Third Circuit should have compared
searches of visitors and employees and used this comparison to invalidate
suspicionless searches of visitors’ vehicles).
198 See cases cited supra note 70 and infra note 207 (setting forth reasonable
suspicion standard to govern strip searches of prison visitors and employees).
199 Compare Neumeyer v. Beard, 421 F.3d 210, 214-15 (3d Cir. 2005) (permitting
suspicionless searches of prison visitors’ vehicles), with Wiley v. Dep’t of Justice, 328
F.3d 1346, 1353-55 (Fed. Cir. 2003) (invalidating search of prison employee’s vehicle
because warden did not possess reasonable grounds to suspect employee kept gun in
his car).
200 Neumeyer, 421 F.3d at 214-15.
201 See Wiley, 328 F.3d at 1353 (concluding that warden must reasonably suspect
that employee kept gun in his vehicle parked in prison’s parking lot to justify search);
McDonell v. Hunter, 809 F.2d 1302, 1309 (8th Cir. 1987) (requiring reasonable
suspicion to justify search of prison employee’s vehicle); cf. Jakubowicz v. Dittemore,
No. 05-4135-CV-C-NKL, 2006 WL 2623210, at *5 (W.D. Mo. Sept. 12, 2006) (“The

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officials to safeguard institutional security without unnecessarily
infringing on employees’ Fourth Amendment rights.202 Because these
security considerations apply to prison visitors, the Third Circuit
should have required that prison officials satisfy this standard to
search prison visitors’ vehicles.203
Citing prison administrators’ ubiquitous security concerns, courts
permit some intrusions into prison employees’ privacy.204 Prison
employees’ privacy expectations must yield to accommodate
institutional interests because prison employees willingly accept
employment in this highly regulated environment.205 In crafting
burden of proving whether an employee falls within this special needs exception to
the Fourth Amendment falls on the governmental agency seeking to conduct the
testing.” (citing Neumeyer, 421 F.3d at 214)).
202 See discussion infra this Part (arguing that suspicionless vehicle searches exceed
institutional security justification).
203 See discussion infra this Part (contending that courts should require that prison
officials satisfy reasonable suspicion standard before searching visitors’ vehicles).
204 Wiley, 328 F.3d at 1353 (balancing intrusion on employee’s Fourth Amendment
interests against prison’s substantial interest in maintaining security); Ohio Civil Serv.
Employees Ass’n v. Seiter, 858 F.2d 1171, 1177 (6th Cir. 1988) (upholding searches
as within “the expectations of persons working daily in a close, dangerous
environment, filled with temptations and very special and understood concerns for
prison discipline and security”); McDonell, 809 F.2d at 1306-07 (observing that
burdens of maintaining safety, order, and security diminish prison employees’
expectation of privacy); Sec. & Law Enforcement Employees v. Carey, 737 F.2d 187,
202 (2d Cir. 1984) (finding difficult burdens of maintaining safety, order, and security
diminishes prison employees’ expectations of privacy); State v. Paruszewski, 466 P.2d
787, 789 (Ariz. Ct. App. 1970) (stating that prison security requires continuously
checking all persons and places within prison walls, including employees); see also
Leverette v. Bell, 247 F.3d 160, 168 (4th Cir. 2001) (permitting prison authorities to
conduct visual body cavity search of employee when they reasonably suspect that
employee has hidden contraband on his or her person); cf. Int’l Union v. Winters, 385
F.3d 1003, 1012 (6th Cir. 2004) (“It is well established that an individual who
participates in a heavily regulated industry or activity has a diminished expectation of
privacy.”).
205 See Wiley, 328 F.3d at 1352 (noting that prison employee’s reasonable
expectation of privacy in car mitigated by conspicuous sign indicating that his vehicle
was subject to search); Leverette, 247 F.3d at 168 (reasoning that prison’s manifest
interest in preventing introduction of drugs, weapons, and other contraband diminish
employee’s expectations of privacy); Seiter, 858 F.2d at 1177 (observing that prison
employees volunteered to work in security conscious environment); McDonell, 809
F.2d at 1306 (citing Carey, 737 F.2d at 202) (“While correction officers retain certain
expectations of privacy, it is clear that, based upon their place of employment, their
subjective expectations of privacy are diminished while they are within the confines of
the prison.”); Carey, 737 F.2d at 202 (finding that nature of correction officers’
employment significantly diminishes their retained expectations of privacy); United
States v. Sihler, 562 F.2d 349, 351 (5th Cir. 1977) (“Requiring such consent [to
search] as a condition of employment, and therefore access to the prison, seems to us

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standards that govern searches of prison employees, courts narrowly
tailor the search to meet the institutional need for security.206
To strip search a prison employee, prison administrators must
articulate facts to support a belief that the employee concealed
contraband on his or her person.207 This reasonable suspicion
standard affords employees significant Fourth Amendment protections

to be a reasonable security measure.”); Adrow v. Johnson, 623 F. Supp. 1085, 1088
n.3 (N.D. Ill. 1985) (citing Cook County Dept. of Corrections, General Order No. 9.8)
(describing limited search conducted at shift change to ensure institution’s safety and
security); Paruszewski, 466 P.2d at 788-89 (upholding search of prison guard that
produced pair of brass knuckles and marijuana even though guard initially refused to
consent to search); Clark v. State, 395 So. 2d 525, 529 (Fla. 1981) (“[P]rison guard’s
expectation of privacy is extremely limited by the environment that he or she chooses
to work in.”); STERN, supra note 2, at 123-24 (noting that many United States prisons
submit staff to pat-down searches upon arrival at work); see also Int’l Union, 385 F.3d
at 1012 (“[E]mployees who work within prisons obviously work in a highly regulated
context. Therefore, since these employees work in highly regulated fields, we
conclude that they have a diminished expectation of privacy.”); United States v.
Kelley, 393 F. Supp. 755, 757 (W.D. Okla. 1975) (holding guard did not posses any
reasonable expectation of privacy at any time when he was within reformatory).
206 See Wiley, 328 F.3d at 1352-53 (articulating reasonable suspicion standard for
search of prison employee’s vehicle); Leverette, 247 F.3d at 167 (recognizing that
prison employee “does not forfeit all privacy rights when she accepts employment”);
McDonell, 809 F.2d at 1306 (applying reasonable suspicion standard to strip searches
of correction officers working in correctional facilities); Carey, 737 F.2d at 202
(recognizing that correctional officers have privacy expectations that “they will be free
from excessive and unwarranted intrusions based upon unrestrained, standardless
exercises of authority by prison administrators” even within “unique confines of
correctional facilities”); Clark, 395 So. 2d at 528 (holding that shakedown search of
prison guard involved only minimal intrusion compared with state’s interest in
keeping contraband out of prison).
207 See Leverette, 247 F.3d at 168 (upholding visual body cavity search of prison
employee when authorities possess reasonable suspicion that employee is hiding
contraband on his or her person); McDonell, 809 F.2d at 1306 (adopting reasonable
suspicion standard for strip searches of correction officers while working in
correctional facilities); Carey, 737 F.2d at 204 (holding that governmental interest in
controlling flow of contraband into correctional facilities justifies strip searches of
employees based on reasonable suspicion); Pierce v. Ohio Dep’t of Rehab. & Corr.,
284 F. Supp. 2d 811, 834 (N.D. Ohio 2003) (approving reasonable suspicion standard
as protecting privacy and providing flexibility to keep contraband out of prison);
Adrow, 623 F. Supp. at 1088-89 (applying reasonable suspicion standard to strip
search of corrections officer); Armstrong v. N.Y. State Comm’r of Corr., 545 F. Supp.
728, 731 (N.D.N.Y. 1982) (requiring “articulable facts” supporting belief that
employee concealed contraband on his person). But see Scoby v. Neal, 981 F.2d 286,
288-89 (7th Cir. 1992) (holding that corrections supervisors entitled to qualified
immunity because no clearly established right for correctional officers to be free of
warrantless body cavity searches).

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without creating an insuperable barrier to institutional security.208
Courts require that prison officials satisfy this same reasonable
suspicion standard to strip search prison visitors.209
Although reasonable suspicion governs strip searches of prison
visitors and employees, courts apply different standards in the vehicle
search context.210 For prison visitors, courts exclusively focus on
institutional concerns and permit suspicionless vehicle searches.211
Courts treat vehicle searches of prison employees, on the other hand,
as workplace searches.212 By adopting this characterization, public
See Wiley, 328 F.3d at 1352-53 (noting employee’s privacy expectation in
vehicle); Leverette, 247 F.3d at 167 (“[P]rison employee . . . does not forfeit all privacy
rights when she accepts employment.”); McDonell, 809 F.2d at 1306 (alluding to
correction officers’ retained expectations of privacy); Carey, 737 F.2d at 203
(“[C]orrections officers, as free citizens, should not have their rights measured against
standards applicable to convicted inmates and accused pretrial detainees.”). But see
Kelley, 393 F. Supp. at 757 (“[Prison guard] could have no reasonable expectation of
privacy while on prison or reformatory grounds and would be for that reason without
the protection of the Fourth Amendment.”).
209 See Leverette, 247 F.3d at 167 (analogizing privacy rights of prison visitors and
employees); Carey, 737 F.2d at 204 (“First, both categories [prison employees and
visitors] consist of citizens whom society obviously would recognize as having higher
expectations of privacy while outside a correctional facility than while inside. Second,
both consist of unincarcerated individuals who may be sources of entry of contraband
into inmate populations and thus can pose potential hazards to the correctional
facilities’ goal of maintaining institutional security. Finally, once they have entered a
correctional facility, both have diminished expectations of privacy.”). Compare
Leverette, 247 F.3d at 168 (requiring reasonable suspicion to conduct intrusive bodily
search of prison employee), and Hunter v. Auger, 672 F.2d 668, 674 (8th Cir. 1982)
(requiring reasonable suspicion to strip search prison visitor), with Schmerber v.
California, 384 U.S. 757, 770 (1966) (conducting invasive bodily search requires clear
indication that evidence will be found).
210 Compare Neumeyer v. Beard, 421 F.3d 210, 214-15 (3d Cir. 2005) (permitting
suspicionless searches of prison visitors’ vehicles), with Wiley, 328 F.3d at 1353-55
(invalidating search of prison employee’s vehicle because warden did not possess
reasonable grounds to suspect employee kept loaded gun in his car).
211 See United States v. Prevo, 435 F.3d 1343, 1346 (11th Cir. 2006) (upholding
vehicular search of visitor based on prison’s need to intercept contraband); Neumeyer,
421 F.3d at 214-15 (validating prison practice of conducting suspicionless searches of
prison visitors’ vehicles under Fourth Amendment special needs doctrine); Romo v.
Champion, 46 F.3d 1013, 1016 (10th Cir. 1995) (upholding vehicle checkpoint on
road leading to correctional facility under Fourth Amendment); Spear v. Sowders, 71
F.3d 626, 633 (6th Cir. 1995) (rejecting requirement of individualized suspicion to
search visitor’s car on prison grounds, particularly if signs warn visitor of possibility of
search).
212 See O’Connor v. Ortega, 480 U.S. 709, 725-26 (1987) (holding reasonableness
standard governs employer intrusions on constitutionally protected privacy interests
of government employees for non-investigatory, work-related purposes and
investigations of work-related misconduct); Leverette v. Bell, 247 F.3d 160, 168 (4th
208

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employers can infringe on a government employee’s protected privacy
interests only when warranted by special needs beyond general law
enforcement.213 Employers must conduct these workplace searches for
non-investigatory, work-related purposes or for investigating workrelated misconduct.214 Thus, prison officials could permissibly search
an employee’s car if the officials believed that the car contained
contraband that the employee intended to smuggle to inmates. Courts
have used this standard to proscribe suspicionless searches of
employees’ vehicles without evidence demonstrating that inmates have
unsupervised access to the cars.215
The Neumeyer court should have applied to prison visitors the
reasonable suspicion standard that governs searches of prison
employees’ vehicles.216 The government’s need to prevent contraband
Cir. 2001) (emphasizing that reasonable suspicion is minimum requirement and
noting that more invasive search requires higher showing); McDonell, 809 F.2d at
1306-08 (holding that urinalyses is “least intrusive method” of mediating real threat
that employees who use drugs pose to institutional security); Sec. & Law Enforcement
Employees v. Carey, 737 F.2d 187, 209-10 (2d Cir. 1984) (invalidating invasive
searches pursuant to prison’s random-search policy because searches severely trammel
correction officers’ legitimate privacy expectations).
213 See Nat’l Treasury Employees Union v. Von Raab, 489 U.S. 656, 671 (1989)
(“[I]t is plain that certain forms of public employment may diminish privacy
expectations even with respect to such personal searches.”); Skinner v. Ry. Labor
Executives’ Ass’n, 489 U.S. 602, 621, 628 (1989) (holding that government’s interest
in regulating railroad employees’ conduct to ensure safety presents “special needs”
that justify departure from warrant and probable cause requirements); O’Connor, 480
U.S. at 725-26 (holding that reasonableness standard governs employer intrusions on
constitutionally protected privacy interests of government employees for noninvestigatory, work-related purposes and investigations of work-related misconduct);
see also Leventhal v. Knapek, 266 F.3d 64, 73 (2d Cir. 2001) (citing O’Connor, 480
U.S. at 717-18) (“[W]orkplace conditions can be such that an employee’s expectation
of privacy in a certain area is diminished.”); see also Jakubowicz v. Dittemore, No. 054135-CV-C-NKL, 2006 WL 2623210, at *5 (W.D. Mo. Sept. 12, 2006) (“The burden
of proving whether an employee falls within this special needs exception to the Fourth
Amendment falls on the governmental agency seeking to conduct the testing.” (citing
Neumeyer, 421 F.3d at 214)).
214 O’Connor, 480 U.S. at 725-26. Determining the reasonableness of a workplace
search involves a twofold inquiry. Id. First, whether the employer reasonably
suspected that the search would reveal evidence that the employee is guilty of workrelated misconduct. Id. (citing Terry v. Ohio, 392 U.S. 1, 20 (1968)). Second,
whether the search actually conducted reasonably relates in scope to the
circumstances that justified the interference in the first place. Id. (citing New Jersey v.
T.L.O., 469 U.S. 325, 341 (1985)).
215 See McDonell, 809 F.2d at 1309 (“[I]t is not unreasonable to search vehicles that
are parked within the institution’s confines where they are accessible to inmates.”).
216 See infra notes 217-23 and accompanying text (contending that reasonable
suspicion standard should govern searches of prison visitors’ vehicles).

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from entering prisons diminishes both employees’ and visitors’ privacy
protections.217 However, both groups retain some constitutional
protections within the penal environment.218 Despite upholding
suspicionless searches of visitors’ vehicles, the Third Circuit never
suggested that prison visitors pose a greater threat to institutional
security than prison employees.219
In fact, some courts have suggested that employees present a greater
threat to security because they spend more time in the facility and
freely access sensitive areas.220 Employees have more opportunities to
217 See Leverette, 247 F.3d at 168 (suggesting that applying reasonable suspicion
standard to invasive searches of visitors bolsters court’s application of same standard
to employees); McDonell, 809 F.2d at 1306-07 (noting that courts’ determinations that
reasonable suspicion standard governs body searches of prison visitors and
employees); Carey, 737 F.2d at 204 (“[T]here are significant parallels between visitors
to correctional facilities and correction officers who work in them. First, both
categories consist of citizens whom society obviously would recognize as having
higher expectations of privacy while outside a correctional facility than while inside.
Second, both consist of unincarcerated individuals who may be sources of entry of
contraband into inmate populations and thus can pose potential hazards to the
correctional facilities’ goal of maintaining institutional security. Finally, once they
have entered a correctional facility, both have diminished expectations of privacy.”);
cf. Int’l Union v. Winters, 385 F.3d 1003, 1012 (6th Cir. 2004) (“[E]mployees who
either have (1) law enforcement duties, (2) direct and unsupervised contact with
prisoners, 80 percent of whom have a history of drug abuse, or (3) a responsibility to
deliver health care or psychological services to persons in state custody, would pose a
significant potential threat to the health and safety of themselves and others if they use
drugs or were under the influence of drugs while on duty.”). But see Neumeyer v.
Beard, 301 F. Supp. 2d 349, 351 (M.D. Pa. 2004) (citing Wiley v. Dep’t of Justice, 328
F.3d 1346, 1353 (Fed. Cir. 2003)) (rejecting visitor’s analogy to search of employee’s
vehicle).
218 See supra note 217 (describing courts’ analogizing prison visitors and
employees).
219 See infra notes 220-22 and accompanying text (describing threat posed by
employees and visitors to prison security).
220 See Ohio Civil Serv. Employees Ass’n v. Seiter, 858 F.2d 1171, 1177 (6th Cir.
1988) (“Not only do prison employees spend more time in prisons, but they also have
more access to sensitive areas of the facility. Thus, they pose an even greater potential
security risk than the high risk already posed by visitors. Further, the employees
volunteered to work in a security conscious environment. While visitors do volunteer
to visit the prison, it is unlikely that they chose to place their family members or
friends into incarceration.”); see also Sec. & Law Enforcement Employees v. Carey,
737 F.2d 187, 191 (2d Cir. 1984) (noting that is not unexpected or surprising that
some of these guards or corrections officers breach security by smuggling contraband
into correctional facilities); Williams v. Price, 25 F. Supp. 2d 605, 613 (W.D. Pa.
1997) (describing guards’ involvement in smuggling contraband, including drugs, to
prisoners); TED CONOVER, NEWJACK: GUARDING SING SING 104 (2000) (“The first
strange thing about contraband was that its most obvious forms — weapons, drugs,
and alcohol — could all be found fairly readily inside prison. Some of the drugs

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transmit contraband to inmates because they spend a great deal of
unsupervised time with inmates.221 In contrast, constant supervision
and limits on visitors’ physical contact with inmates afford visitors far
fewer opportunities to transmit contraband to inmates.222
Nevertheless, courts closely circumscribe the government’s authority
to search employees’ vehicles, while allowing the government to
randomly and unjustifiably search visitors’ vehicles.223
The Neumeyer court’s interpretation of prison employees’ and
visitors’ interests may explain its decision to uphold suspicionless
searches of visitors’ vehicles. In its opinion, the court noted that
safeguarding institutional security is prison employees’ core
objective.224 While the Third Circuit explicitly recognized employees’
responsibility to keep contraband out of the facility, other courts have
implied that prison employees have a personal interest in fulfilling this
obligation.225 These courts reason that any contraband introduced

probably slipped in through the Visit Room, but most, it seemed, were helped into
prison by [corrections] officers who were paid off.”).
221 See supra note 220 (describing guards transmitting contraband to prisoners).
222 See supra note 220 (describing guards’ unsupervised access to inmates).
223 See supra notes 210-15 and accompanying text (comparing prison officials’
authority to search visitors and employees).
224 Neumeyer v. Beard, 421 F.3d 210, 214 (3d Cir. 2005) (“Within prison walls,
the central objective of prison administrators is to safeguard institutional security.”);
see Hunter v. Auger, 672 F.2d 668, 674 (8th Cir. 1982) (“[C]orrectional officials
recognize their duty to constrict the flow of contraband into the prison.”); Newman v.
Alabama, 559 F.2d 283, 291 (5th Cir. 1977) (stating that prison authorities’ “prime
consideration is the preservation of the safety and security of the prison,” which
includes “duty to intercept narcotics and other harmful contraband” being smuggled
into facility by visitors); see also BEN BYCEL & FRANK MICHAELSON, VISITING AND
TELEPHONING IN CALIFORNIA JAILS, PRISONS, AND JUVENILE INSTITUTIONS 66 (1978)
(commenting that visiting room officers regard intercepting narcotics and preventing
violent behavior as most important functions); ROGER SHAW, CHILDREN OF IMPRISONED
FATHERS 17 (1987) (describing nature of prison services as essentially containment
and security); BUREAU OF LABOR STATISTICS, supra note 47 (describing correction
officer’s main purpose as “maintaining security and inmate accountability to prevent
disturbances, assaults, and escapes”).
225 See Evans v. Stephens, 407 F.3d 1272, 1289 (11th Cir. 2005) (“[C]ontraband
poses the greatest security risk for officials at detention facilities.”); Carey, 737 F.2d at
202 (discussing correctional employees claim to “have a greater stake in eliminating
contraband and its sources than the prison administrators, since it is they who must
work among the inmates where the effects of the contraband are most strongly felt”);
see also Hudson v. Palmer, 468 U.S. 517, 527-28 (1984) (noting that Court routinely
“strike[s] the balance in favor of institutional security” because of dangers inherent in
penal environment); Bell v. Wolfish, 441 U.S. 520, 559 (1979) (mentioning that
detention facility is unique place fraught with serious security dangers); United States
v. Prevo, 435 F.3d 1343, 1346 (11th Cir. 2006) (“Because of the character of prisoners

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into the volatile prison environment potentially endangers corrections
employees.226 Thus, correctional officers’ employment responsibilities
intersect with their personal interest in safety to create an incentive to
keep contraband from entering the prison.
Although not explicitly stated in the Third Circuit’s opinion,
opponents seem to envision employees and visitors playing
antagonistic roles within the penal environment.227 These opponents
define prison visitors by their relationship to the incarcerated
individual.228 Because of this relationship, courts generally presume
that visitors align their interests with prisoners, and consequently view
their interests as opposed to corrections employees.229
This explanation of visitors’ and employees’ interests may partially
account for the different standard the Neumeyer court applied to
and the nature of imprisonment, corrections facilities are volatile places, brimming
with peril, places where security is not just a operational nicety but a matter of life or
death importance.”). See generally CONOVER, supra note 220 (describing harsh culture
of prison, and prison guards’ grueling and demeaning working conditions).
226 See sources cited supra note 225 (describing dangers encountered by prison
employees).
227 See SHAW, supra note 224, at 22 (noting that prison system makes staff “the
common enemy of the inmate and his family”); see also NORMAN FENTON, TREATMENT
IN PRISON: HOW THE FAMILY CAN HELP 20-22, 76-77 (Cal. Dep’t of Corr. ed., 1959)
(instructing prisoner’s family members not to “catch” inmate’s resentment towards
prison authority; instead family should join with prison employees in treatment
program); FELIX M. PADILLA & LOURDES SANTIAGO, OUTSIDE THE WALL: A PUERTO RICAN
WOMAN’S STRUGGLE 125, 158 (1993) (describing corrections officers’ distant and cold
treatment of prison visitors).
228 See PADILLA & SANTIAGO, supra note 227, at 158 (“The officers have this attitude
that the men who are serving time are animals and that they don’t have to respect
these animals or their families.”).
229 See BONNIE E. CARLSON & NEIL CERVERA, INMATES AND THEIR WIVES:
INCARCERATION AND FAMILY LIFE 36-37 (1992) (noting that procedures and policies
governing visitation mainly concern introduction of contraband); see also SHAW, supra
note 224, at 17 (characterizing prison staff and inmates as aligned against each other);
Lloyd W. McCorkle, Guard-Inmate Relationships, in THE SOCIOLOGY OF PUNISHMENT
AND CORRECTION 421-22 (Norman Johnston et al. eds., 2d ed. 1970) (discussing
undermining of guard’s authority by inmates’ seemingly innocuous encroachments on
guard’s duties); Lloyd W. McCorkle & Richard Korn, Resocialization Within Walls, in
THE SOCIOLOGY OF PUNISHMENT AND CORRECTION, supra, at 413-15 (discussing
custodian’s need to maintain social distance from inmates because inmates will exploit
custodian’s weaknesses); Gresham Sykes & Sheldon L. Messinger, The Inmate Social
Code, in THE SOCIOLOGY OF PUNISHMENT AND CORRECTION, supra, at 403 (discussing
inmate norm of treating guards with suspicion and distrust); cf. Block v. Rutherford,
468 U.S. 576, 586 (1984) (“Contact visits invite a host of security problems. They
open the institution to the introduction of drugs, weapons, and other contraband.
Visitors can easily conceal guns, knives, drugs, or other contraband in countless ways
and pass them to an inmate unnoticed by even the most vigilant observers.”).

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searches of visitors’ and employees’ vehicles. However, this reasoning
collapses when considering the strip search and vehicle search
standards together.230 Whether carried into the prison by employees
or visitors, contraband transmitted to inmates clearly endangers
institutional security.231 Strip searches and routine searches required
for entry aim to intercept contraband actually carried into the
facility.232 Courts apply identical standards to visitors and employees
for these categories of searches.233 By applying the same standards to
visitors and employees, courts legitimate these searches’ connection to
institutional security.234
Contraband inside a parked vehicle on the facility’s grounds,
however, does not pose the same imminent threat to institutional
security as contraband carried into the prison.235 While one can link
vehicle searches to preserving order, the differing standards applied to
visitors and employees for vehicle searches undermines the search’s
connection to institutional security.236 The inconsistent standards for
See infra notes 231-36 and accompanying text (considering strip search and
vehicle search standards).
231 See sources cited supra notes 45-47 (describing danger contraband poses to
institutional security).
232 See sources cited supra notes 45-47 (describing how routine searches and strip
searches address prison security).
233 United States v. Sihler, 562 F.2d 349, 351 (5th Cir. 1977) (remarking that
prison guard voluntarily accepted and continued employment, which routinely
subjected him to search); State v. Paruszewski, 466 P.2d 787, 789 (Ariz. Ct. App.
1970) (suggesting that prison can only maintain security by enforcing continuous
checks on all persons and places within prison walls, including employees); Clark v.
State, 395 So. 2d 525, 529 (Fla. 1981) (finding that prison guard’s right to be free
from random shakedown searches does not outweigh state’s interest in preventing
contraband’s flow into prisons).
234 See supra notes 231-33 and accompanying text (contending that strip searches
and routine searches are legitimately connected to institutional security).
235 See Florida v. Royer, 460 U.S. 491, 500 (1983) (“[If] legitimate law enforcement
interests justify warrantless search[,] the search must be limited in scope to that which
is justified by the particular purposes served by the exception.”); Terry v. Ohio, 392
U.S. 1, 19 (1968) (quoting Warden v. Hayden, 387 U.S. 294, 310 (1967) (Fortas, J.,
concurring)) (“The scope of the search must be ‘strictly tied to and justified by’ the
circumstances which rendered its initiation permissible.”); Kremen v. United States,
353 U.S. 346, 347-48 (1957) (reasoning that search which is reasonable at its
inception may violate Fourth Amendment by virtue of its intolerable intensity and
scope); United States v. Davis, 482 F.2d 893, 910 (9th Cir. 1973) (requiring officials
to limit administrative screening search to satisfying administrative need).
236 See United States v. Prevo, 435 F.3d 1343, 1347 (11th Cir. 2006) (finding that
loaded pistol and cocaine in defendant’s car remained accessible to passing prisoners
inclined to wrongdoing); Spear v. Sowders, 71 F.3d 626, 632-33 (6th Cir. 1995)
(observing that object secreted in car potentially threatens institutional security at all
230

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searching prison employees’ and visitors’ vehicles indicate that these
searches only loosely serve the proffered government interest. The
Third Circuit erred in upholding suspicionless searches of visitors’
vehicles in Neumeyer because these searches grossly intrude upon a
visitors’ privacy while contributing little to prison security.
C. Suspicionless Vehicle Searches Deter Prisoners’ Family and Friends
from Visiting and Inhibit Prisoners’ Rehabilitation
Allowing officers to selectively search visitors’ vehicles when they
first arrive at the prison’s entrance fosters distrust and suspicion on
both sides of the transaction.237 Prison officers view — or, at least
treat — visitors as potential suspects, and the officers convey their
distrust while performing these searches.238 Visitors find these
searches humiliating and depersonalizing.239 Furthermore, officers
have broad discretion in deciding whom to search, and do not search
times car on premises); McDonell v. Hunter, 809 F.2d 1302, 1309 (8th Cir. 1987)
(“[I]t is not unreasonable to search vehicles that are parked within the institution’s
confines where they are accessible to inmates.”).
237 See PADILLA & SANTIAGO, supra note 227, at 158 (describing officers’ attitude
that visits make them work more than they should); Megan Comfort et al., “You Can’t
Do Nothing in this Damn Place”: Sex and Intimacy Among Couples with an Incarcerated
Male Partner, 42 J. SEX RES. 3, 6-7 (2005) [hereinafter Comfort et al., Damn Place]
(discussing guards’ continual enforcement of civility during contact visits and guards
perception of visitors as perpetually trying to thwart rules); Lance C. Couturier,
Families in Peril: Inmates Benefit from Family Service Programs, CORRECTIONS TODAY,
Dec. 1995, at 100 [hereinafter Couturier, Benefit] (“Many corrections professionals do
not regard families as legitimate clients and do not welcome what they view as the
intrusion of family members . . . into their facilities.”); see also PADILLA & SANTIAGO,
supra note 227, at 157 (“[A]s soon as I get to the entrance of the prison, I must
confront very quickly some cruel and insensitive group of individuals.”); Megan L.
Comfort, In the Tube at San Quentin: The “Secondary Prisonization” of Women Visiting
Inmates, 32 J. CONTEMP. ETHNOGRAPHY 77, 82-102 (2003) [hereinafter Comfort, In the
Tube] (“Women visiting prisoners readily perceive their treatment at the prison as a
collapse of institutional differentiation between visitors and inmates.”).
238 See supra note 237 (describing prison visitor and prison guard relations at
entrance gate); see also Comfort et al., Damn Place, supra note 237, at 7 (discussing
visitors’ frustration and hurt at correctional officers’ scrutiny and insinuation of
visitors’ hypersexuality).
239 See HUMAN RIGHTS WATCH, THE HUMAN RIGHTS WATCH GLOBAL REPORT ON
PRISONS 106 (1993) (observing that harassment and searches experienced by visitors
turn visiting into unpleasant and even humiliating experience); PADILLA & SANTIAGO,
supra note 227, at 159-61 (describing humiliating experience of “shakedown” and
suggesting that many people prefer to not visit rather than allow search); Comfort, In
the Tube, supra note 237, at 101 (describing how visiting procedures or “ceremonies of
belittlement” abridge visitor’s personhood in “purported interest of institutional
security”).

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every vehicle that comes into the prison.240 Those visitors that officers
decide to search thus often feel singled out as likely criminals.241
Visitors selected for these searches must then watch as an officer
indiscriminately rifles through their vehicle and belongings, searching
for evidence of criminal activity.242 These initial contacts with prison
officials at the entrance gate set the tone for the visit.243 The
antagonism and distrust established during these initial contacts
discourages family and friends from visiting, and further isolates
prisoners from the world beyond the prison gates.
The Supreme Court has never held that incarceration altogether
terminates a prisoner’s right to associate with family and friends.244
240 Neumeyer v. Beard, 421 F.3d 210, 215-16 (3d Cir. 2005) (upholding
suspicionless vehicle searches conducted at guard’s discretion); see ANN AUNGLES, THE
PRISON AND THE HOME: A STUDY OF THE RELATIONSHIP BETWEEN DOMESTICITY AND
PENALITY 171 (1994) (describing visitors’ sense that prison administrators exert
arbitrary and overreaching control over visitors); Kathleen McDermott & Roy D.
King, Prison Rule 102: “Stand by Your Man”: The Impact of Penal Policy on the Families
of Prisoners, in PRISONERS’ CHILDREN: WHAT ARE THE ISSUES? 50, 62 (Roger Shaw ed.,
1992) (describing search practices where some staff treated visitors with dignity and
tact whereas others subjected families to unnecessary humiliation).
241 See supra notes 238-40 and accompanying text (describing prison visitor and
prison guard relations at entrance gate).
242 See Neumeyer, 421 F.3d at 215-16 (upholding suspicionless vehicle searches
even though no established standards that govern searches).
243 See CARLSON & CERVERA, supra note 229, at 115 (noting that treatment of
visitors when they first arrive at facility informs visitors’ attitudes about facility and
visiting in general); Comfort et al., Damn Place, supra note 237, at 7 (“Officers
generally believe that rule enforcement during the initial screening processes that
occur when visitors first enter the prison sets the tone for how strictly people will
expect to be held to regulations throughout their time in the correctional facility.”);
Comfort, In the Tube, supra note 237, at 80 (describing entrance as battleground of
“contested personhood” where “visitors continually define and defend their social and
physical integrity against the degradation of self . . . required by the prison as a
routine condition for visiting”); McDermott & King, supra note 240, at 62 (arguing
that most sensitive interaction between staff and families occurs during search before
visit); see also Norman Fenton, Assistance in Treatment from the Families and Friends of
Inmates, in HUMAN RELATIONS IN ADULT CORRECTIONS 88, 88-89 (Norman Fenton ed.,
1973) (suggesting that one can gauge employees’ level of training, job satisfaction, and
general morale of institution by observing how employees treat visitors).
244 Overton v. Bazzetta, 539 U.S. 126, 131 (2003) (“We do not hold, and we do not
imply, that any right to intimate association is altogether terminated by incarceration
or is always irrelevant to claims made by prisoners.”). However, in a previous case,
the Court determined that prisoners did not have a liberty interest in receiving visitors
protected by the Due Process Clause. Ky. Dep’t of Corr. v. Thompson, 490 U.S. 454,
461 (1989). The Court determined that the Kentucky prison regulations lacked the
mandatory language required to create a liberty interest in visitation. Id. at 463-64.
Although the terms of confinement may include denying visitors’ prison access, the

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However, the Court allows prison administrators to impose substantial
restrictions on prison visitation.245 In evaluating these restrictions, the
Court analyzes whether a challenged regulation rationally relates to
legitimate penological interests.246 While tacitly recognizing that
inmates retain some rights of association, the Court’s analysis defers to
prison officials’ expertise in implementing regulations.247
Although prison officials can significantly restrict prison visitation,
courts consistently acknowledge the positive impact that visiting with
family and friends has on inmates.248 The wealth of social science
research buttresses this conclusion, indicating that inmates who
maintain contact with their families cope better with their sentence.249
Court declined to preclude states from granting visitors a right to visitation. Id. at 461
n.3. Marshall’s dissenting opinion argues visitation implicates an inmate’s retained
liberty interests because prison visits are “critically important to inmates as well as to
the communities to which the inmates ultimately will return.” Id. at 468-70
(Marshall, J., dissenting); see also Sandin v. Conner, 515 U.S. 472, 483-84 (1995)
(limiting prison regulations’ ability to create liberty interests); Rowland v. Wolff, 36 F.
Supp. 257, 259 (D. Neb. 1971) (rejecting contention that inmate possesses
constitutional right to visit with sisters); COMM. ON THE OFFICE OF THE ATTORNEY GEN.,
NAT’L ASS’N OF ATTORNEYS GEN., PRISON VISITATION 1 (1977) (noting that majority rule
is that prisoner has no right to visitation).
245 See Spear v. Sowders, 71 F.3d 626, 630 (6th Cir. 1995) (finding no Due Process
right to unfettered visitation). However, in many states, prison officials only take
away an inmate’s visiting privileges if the inmate seriously violates a rule related to
visiting. See, e.g., BYCEL & MICHAELSON, supra note 224, at 46 (noting that California
inmates lose visitation privileges only after serious infractions, such as attempting to
smuggle contraband into prison through visiting room).
246 See Overton, 539 U.S. at 132 (applying Turner v. Safley, 482 U.S. 78, 89
(1987)).
247 Id. at 131 (according substantial deference to prison administrator’s professional
judgment considering their responsibility for defining corrections system’s goals and
determining means to accomplish goals); Turner, 482 U.S. at 90 (“When
accommodation of an asserted right will have a significant ‘ripple effect’ on fellow
inmates or on prison staff, courts should be particularly deferential to the informed
discretion of corrections officials.”); see Stanley E. Adelman, Supreme Court Rules
Restrictions on Prison Visitation Are Constitutional, CORRECTIONS TODAY, Apr. 2004, at
26 (discussing Overton’s effects on prison personnel’s ability to restrict prison visits).
248 See Ky. Dep’t of Corr., 490 U.S. at 468 (Marshall, J., dissenting) (“[V]isitation
has demonstrated positive effects on a confined person’s ability to adjust to life while
confined as well as his ability to adjust to life upon release” (citing MODEL SENTENCING
AND CORR. ACT § 4-115 (1979))); Thornburgh v. Abbott, 490 U.S. 401, 407 (1989)
(“Access [to prisons] is essential . . . to families and friends of prisoners who seek to
sustain relationships with them.”); Pell v. Procunier, 417 U.S. 817, 825 (1974) (noting
prison director’s determination that personal visits “aid in the rehabilitation of the
inmate while not compromising the other legitimate objectives of the corrections
system”).
249 See AUNGLES, supra note 240, at 112 (discussing importance of visitation in

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By sustaining strong relationships with family and friends, inmates
continue to value free world objectives, rather than adopting the
prison subculture’s value system.250
The benefits of prison visitation extend beyond the actual duration
of incarceration.251 Inmates who maintain close ties to their family
and community during incarceration fare better during parole.252

relieving tensions and stresses inherent in imprisonment); BYCEL & MICHAELSON, supra
note 224, at 39-40 (describing importance of visiting to inmates); HUMAN RIGHTS
WATCH, supra note 239, at 104 (describing crucial importance of contact with relatives
to prisoners’ well-being); Allen Cook & Norman Fenton, An Inventory of Constructive
Influences from the Outside World, in HUMAN RELATIONS IN ADULT CORRECTIONS, supra
note 243, at 74 (maintaining relationships with individuals in outside world raises
prison morale and improves inmate’s participation in institutional programs); Lance
C. Couturier, Families in Peril: Family Services and Mental Health, CORRECTIONS
TODAY, Dec. 1995, at 102 [hereinafter Couturier, Mental Health] (describing
“reduction of prison and jail suicides and self mutilations” as “dramatic result of
enhanced family and other social contacts”); Couturier, Benefit, supra note 237, at 105
(legitimating family services to correctional administrators by demonstrating that
programs foster more positive social climate and reduce recidivism among parolees);
Nancy G. La Vigne et al., Examining the Effect of Incarceration and In-Prison Family
Contact on Prisoners’ Family Relationships, 21 J. CONTEMP. CRIM. JUST. 314, 328 (2005)
(noting that prison contact with family members ameliorates some strains associated
with imprisonment); McDermott & King, supra note 240, at 50-51 (testifying to
importance of prisoner’s maintaining contact with their family because “family
provide[s] a sense of history and hope for a future life beyond the wall”); Suzanne
Carol Schuelke, Prison Visitation and Family Values, 77 MICH. B.J. 160, 160 (1998)
(noting positive correlation between visits and prisoners’ institutional behavior);
Gresham Sykes, The Pains of Imprisonment, in THE SOCIOLOGY OF PUNISHMENT AND
CORRECTION, supra note 229, at 447 (discussing how visitation and mail privileges
relieve prisoner’s isolation).
250 See STANLEY L. BRODSKY, FAMILIES AND FRIENDS OF MEN IN PRISON 10-11 (1971)
(discussing how inmate’s maintenance of family relationships suggests that inmate
still values free world objectives); CARLSON & CERVERA, supra note 229, at 26-27
(maintaining significant attachments to outside world makes prisoner less likely to
acquire “prisoner identity” and adopt dysfunctional attitudes and behaviors of
professional criminals); see also Donald Clemmer, Informal Inmate Groups, in THE
SOCIOLOGY OF PUNISHMENT AND CORRECTION, supra note 229, at 424 (describing
formation of primary inmate groups that share collective understandings and values);
Donald Clemmer, Prisonization, in THE SOCIOLOGY OF PUNISHMENT AND CORRECTION,
supra note 229, at 479-81 (describing inmate process of “prisonization” whereby
inmate takes on folkways, mores, customs and general culture of penitentiary).
251 See infra notes 253-54 (describing visitation’s positive effects that extend
beyond incarceration).
252 See BRODSKY, supra note 250, at 17 (observing that transition to parole easier for
inmates with frequent visitors than those with fewer visitors); CARLSON & CERVERA,
supra note 229, at 42 (describing “strong and consistent positive relationship that
exists between parole success and maintaining strong family ties while in prison”);
Couturier, Mental Health, supra note 249, at 105 (correlating familial interactions with

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Moreover, prisoners who frequently visit with their family and friends
are less likely to develop the dysfunctional behaviors associated with
professional criminals.253 Instead, these inmates are more likely to
remain crime-free after release.254
Despite these recognized benefits, a number of factors discourage
prisoners’ family and friends from visiting.255 Prisons are often located
in remote, rural areas distant from the urban centers from which many
prisoners come.256
This geographic separation creates a time,
reduced recidivism among parolees). See generally Daniel Glaser, Parole Successes and
Failures, in THE SOCIOLOGY OF PUNISHMENT AND CORRECTION, supra note 229, at 706
(describing other factors affecting parole success and failure).
253 See BRODSKY, supra note 250, at 17 (describing major role in post-release
success played by family relationships maintained during incarceration); HUMAN
RIGHTS WATCH, supra note 239, at 104 (noting inmates less likely to relapse into crime
after release if maintain regular contact with loved ones while in prison); Fenton,
supra note 243, at 90 (describing benefits of family counseling while inmate
incarcerated and its value in inmate’s adjustment after release); La Vigne et al., supra
note 249, at 316 (noting consistent correlation of family contact during incarceration
with lower recidivism rates); Schuelke, supra note 249, at 160 (observing that
maintaining close ties to community and family correlate with inmate staying crimefree after release); Jeremy Travis et al., Families Left Behind: The Hidden Costs of
Incarceration and Reentry, URBAN INSTITUTE 6 (2003), http://www.urban.org/
UploadedPDF/310882_families_left_behind.pdf (stating that maintaining family ties
reduces recidivism rates).
254 See BRODSKY, supra note 250, at 10-11 (1975) (discussing how inmate’s
maintenance of family relationships suggests that inmate still values free world
objectives); CARLSON & CERVERA, supra note 229, at 26-27 (maintaining significant
attachments to outside world makes prisoner less likely to acquire “prisoner identity”
and adopt dysfunctional attitudes and behaviors of professional criminals); see also
Donald Clemmer, Informal Inmate Groups, in THE SOCIOLOGY OF PUNISHMENT AND
CORRECTION, supra note 229, at 424 (describing formation of primary inmate groups
that share collective understandings and values); Donald Clemmer, Prisonization, in
THE SOCIOLOGY OF PUNISHMENT AND CORRECTION, supra note 229, at 479-81 (describing
inmate process of “prisonization” whereby inmate takes on folkways, mores, customs
and general culture of penitentiary).
255 See Johanna Christian, Riding the Bus: Barriers to Prison Visitation and Family
Management Strategies, 21 J. CONTEMP. CRIM. JUST. 31, 37, 40-41 (2005) (describing
potential barriers to visiting incarcerated relatives, including time, energy, money,
child care, and social costs); Comfort, In the Tube, supra note 237, at 102 (discussing
prison’s failure to provide sufficient amenities to cover visitors’ basic physical and
hygienic needs); infra notes 256-58 (detailing various barriers to visitation).
256 BRODSKY, supra note 250, at 47 (describing geographic isolation of prisons from
major population centers); Christian, supra note 255, at 36-46 (describing geographic
separation from family as consequence of incarceration); Eva Lloyd, Prisoners’
Children: The Role of Prison Visitors’ Centres, in PRISONERS’ CHILDREN: WHAT ARE THE
ISSUES?, supra note 240, at 178 (describing conditions where visitors must line up
outside prison walls with “nowhere to rest, feed or change babies, get something to eat
or drink, or for children to play”); see also Travis et al., supra note 253, at 1 (noting

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transportation, and financial burden for potential visitors.257
Additionally, correctional practices — reflecting the security mission
of prisons — often discourage visitation.258
Although prison administrators continually cite their important
interest in maintaining institutional security, many regulations

great distances separate incarcerated parents from their children; women prisoners
average 160 miles from their children while men average 100 miles away).
257 See BRODSKY, supra note 250, at 47 (noting that prison’s geographic isolation
results in time, transportation, and financial burden on visitors); BYCEL &
MICHAELSON, supra note 224, at 73-74 (describing family who cannot visit
incarcerated son because time and money required for trip); HUMAN RIGHTS WATCH,
supra note 239, at 105 (observing that physical distance relatives must to travel to visit
presents obstacle to maintaining regular contact); Christian, supra note 255, at 36-46
(studying hardships faced by prison visitors who ride bus from New York City to
prisons throughout state); La Vigne et al., supra note 249, at 323 (describing most
cited barriers to in-person visits as location and expense); Vincent M. Mallozzi, On the
Outside Busing In: A Long and Bittersweet Ride, Weekly, to Visit Loved Ones in Prison,
N.Y. TIMES, May 20, 2005, at B1 (describing family member’s weekly trek to visit
incarcerated relative that takes 8-10 hours one way); David Scharfenberg, 6 Prisons, 2
Days and a Taxi Fleet, N.Y. TIMES, Jul. 3, 2005, at 1 (describing cab rides to
correctional facilities where drivers learn about their riders’ lives); see also Comfort, In
the Tube, supra note 237, at 86 (describing lengthy and inefficient procedures required
for visiting prisoners that belittles worth of family and friends’ time and deprecates
visit’s importance). Furthermore, few prisons provide childcare facilities or personnel
available outside the visiting room. See CARLSON & CERVERA, supra note 229, at 36-37
(observing that most facilities restrict children’s movement during visits and do not
provide special facilities such as changing areas, play areas, or refrigeration for
formula). This requires family members to secure childcare or bring the child along
to the visit. See BYCEL & MICHAELSON, supra note 224, at 70-71 (describing how lack
of childcare facilities affect visit); CARLSON & CERVERA, supra note 229, at 36-37
(describing difficulty of controlling children in prison visiting environment); see also
SHAW, supra note 224, at 17-25 (observing that prison administrators view prisoner’s
child as irrelevant to management of inmate unless it causes prisoner to become
problem). While most parents reported contact with their children since their
admission, a majority of both fathers and mothers in prison report never visiting with
their children in person. See BUREAU OF JUST. STATISTICS, U.S. DEP’T OF JUST.,
INCARCERATED PARENTS AND THEIR CHILDREN 5 (2000) (analyzing statistics of
incarcerated parents’ contact with their children); Jeremy Travis et al., supra note 253,
at 5 (citing difficulty scheduling visits, location, humiliating visiting procedures
inhospitable visiting rooms, and travel expense as obstacles to parent-child visits in
prison).
258 See Jeremy Travis & Michelle Waul, Prisoners Once Removed: The Children and
Families of Prisoners, in PRISONERS ONCE REMOVED 1, 9 (Jeremy Travis & Michelle
Waul eds., 2005), available at http://www.urban.org/pubs/prisoners/chapter1.html
(noting that “uncomfortable or humiliating security procedures at the prison . . . can
strain even the strongest relationships”); Jeremy Travis et al., supra note 253, at 6
(describing how intimidating security procedures and other correctional practices
impede maintenance of family ties).

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governing visitors significantly exceed this purported interest.259
Coupled with the myriad of regulations governing visitors,
suspicionless vehicle searches authorize prison personnel to exert
institutional control over prison visitors.260 Under the guise of safety
and security, prison officials freely access and control visitors’ bodies,
personal belongings, and vehicles.261 Many visitors avoid visiting
incarcerated relatives or friends because they find the prison’s
extensive battery of searches humiliating and degrading.262
Suspicionless searches of prison visitors’ vehicles initiate the process
of exerting institutional control over prison visitors.263 This process
intensifies as visitors travel from the prison grounds into the
institution itself.264 By organizing and processing visitors’ bodies and
belongings, these regulations subject visitors to a diluted version of
the regulations, surveillance, and confinement that governs inmates’
lives.265 Based on their association with inmates, societal attitudes
259 See AUNGLES, supra note 240, at 171 (describing visitors’ sense that prison
administrators exert arbitrary and overreaching control over visitors); Comfort, In the
Tube, supra note 237, at 80 (analyzing regulations’ “attempt to denude visitors and
transform them into an obedient corps of unindividuated, nonthreatening entities who
can be organized according to the prison’s rules”); see also CARLSON & CERVERA, supra
note 229, at 115 (suggesting ways to improve visitation while respecting need for
security and concerns about contraband).
260 See AUNGLES, supra note 240, at 171 (“The political relations of prison life can
be manifestly extended to control over visitors.”); Comfort, In the Tube, supra note
237, at 82 (describing ways correctional facility extends its penal reach to women
through regulation of their time and bodies); see also Comfort et al., Damn Place, supra
note 237, at 3 (recognizing that correctional control extends to women’s bodies within
prison walls during visits and at home as women strive to remain connected to absent
mates).
261 See AUNGLES, supra note 240, at 170 (describing how intrusive surveillance
during visits can ruin “good visit” by undermining sense of intimacy and freedom of
expression); Comfort, In the Tube, supra note 237, at 82-103 (analyzing extension of
correctional facility’s penal reach to prison visitors through regulation of visitors’ time
and bodies).
262 See STERN, supra note 2, at 123 (observing that some prisoners forgo visiting
rather than going through attendant humiliations); sources cited supra note 239
(describing how visiting procedures subjugate and humiliate visitors).
263 See PADILLA & SANTIAGO, supra note 227, at 156 (describing “nasty” reception of
visitors once they arrive at front gate); McDermott & King, supra note 240, at 62
(arguing that most sensitive interaction between staff and families occurs during
search before visit).
264 Comfort, In the Tube, supra note 237, at 85-87 (describing transition of women
from legally free people to imprisoned bodies that intensifies as they move deeper into
prison).
265 See PADILLA & SANTIAGO, supra note 227, at 160 (observing that some visitors
feel search symbolizes that “they too are criminals”); Comfort, In the Tube, supra note

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impute criminality to friends and relatives of prisoners.266 Prison
procedures and policies that extend correctional control over visitors
intensify the stigma already experienced by prisoners’ family and
friends.267
CONCLUSION
In Neumeyer, the Third Circuit granted prison officials unbridled
discretion in searching visitors’ vehicles.268
Although prison
administrators claimed these searches safeguarded institutional order,
the Third Circuit never scrutinized whether vehicle searches
effectively addressed the problem of contraband in prisons.269 The

237, at 80-82, 101 (describing how process of visitation transforms visitors from
legally free people to imprisoned bodies for visit’s duration); see also CARLSON &
CERVERA, supra note 229, at 36 (describing prison visits as brief, infrequent, and with
lack of privacy).
266 See BRODSKY, supra note 250, at 10 (describing generalization of stigma from
prisoner to his family); CARLSON & CERVERA, supra note 229, at 15-23 (describing
offenders’ families as “hidden victims of crime” because stigma accompanying
incarceration affects whole family); PADILLA & SANTIAGO, supra note 227, at 134
(“People think that, if your husband is in prison, you must be a criminal too.”);
Christian, supra note 255, at 34 (discussing how great stigma surrounding
incarceration causes many family members to isolate themselves from people in their
lives who could form support networks); Comfort, In the Tube, supra note 237, at 9192 (“[P]ersonal association with a prisoner de facto erases any other privileges
connected to economic or cultural capital when it comes to visitor processing. . . .”).
See generally Jens Soring, Another Christmas in a Prison Visiting Room: Family
Gatherings Give Glimpse of Next Generation of Inmates, 40 NAT’L CATHOLIC REP. 9
(2003) (transcribing current inmate’s thoughts on family dynamics in visiting room:
“In some ways it is worse if a little boy bonds with his convict father. Then the child
puts on the tough-guy strut as he walks into the visiting room and brags to his hero
about the lunch money extortion racket in grade school. The harder mothers object
to this negative role modeling, the more irresistible the ‘gangsta’ life becomes to
youngsters. And when their ‘Daddy’ tells them in the visiting room to be good and do
what Momma says, they know he does not really mean it . . . .”). Some family
members cope with this stigma by distancing themselves overtly or covertly from the
incarcerated relative. See CARLSON & CERVERA, supra note 229, at 22 (describing
methods family members use to distance themselves from offender); PADILLA &
SANTIAGO, supra note 227, at 135 (detailing woman’s efforts over eight years to keep
her husband’s incarceration secret); STERN, supra note 2, at 195 (describing families
who hide relative’s incarceration because of social shame).
267 See supra notes 265-66 (describing stigma that attaches to those associated with
inmates).
268 Neumeyer v. Beard, 421 F.3d 210, 212-16 (3d Cir. 2005) (upholding vehicle
search program even though no standards governed searches and officers conducted
searches as “time and complement permit”).
269 Id. at 214-15.

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court should have found that these searches exceeded the
governmental interest and struck down the regulation.270 The Third
Circuit should require that prison officials reasonably suspect that
visitors’ vehicles contain concealed contraband before searching
them.271 Other courts require that prison officials satisfy this standard
to search prison employees’ vehicles.272 This criterion would allow
officials to safeguard internal order without unduly infringing on
visitors’ Fourth Amendment rights.273 Additionally, this standard
encourages prison visiting, which benefits inmates and society.274 If
inmates remain connected to their families and friends while in prison,
they return to their communities with support networks that help
them reintegrate into society.275

270 See supra Part III.A (arguing that suspicionless vehicle searches exceed prison’s
interest in intercepting contraband).
271 See supra Part III.B (arguing that courts should apply reasonable suspicion
standard for searches of prison visitors’ vehicles).
272 See supra Part III.B (comparing standards for searches applied to prison visitors
and employees).
273 See supra Part III.B (contending that reasonable suspicion standard protects
institutional security without unduly encroaching on visitors’ privacy).
274 See supra Part III.C (discussing social benefits of prison visiting).
275 See supra Part III.C (discussing social benefits of prison visiting).