Privacy vs. Protection
Can You Search Camper and Staff Belongings?

By Michael Blickman, Esq., Ice Miller Donadio & Ryan

Ink about the Jonesboro school shootings was barely dry when camp directors began wondering if such an incident could occur in camp. Of course, it was not the first time the thought had crossed their minds. In a faxed "Hot Topic" paper early in the summer, we notified camp directors about issues relating to searching camper belongings.

Unless the camp is owned by a public entity (e.g. the city recreation department), there are no constitutional issues in having a policy to search belongings of campers. Invasion of privacy issues may be superseded by safety concerns. It would be ideal to have a statement in your parental permission form that includes a statement about having campers inventory their belongings in the presence of staff if the health or safety of other campers or staff indicates the need.

If such an inventory were to be utilized, it is recommended you have another adult witness present. Do not embarrass the camper in front of other campers or a group of staff members. Be sure policies and procedures are conducted uniformly.

What about searches of staff belongings?

The camp may search employee lockers, desks, cabinets, purses, packages, cases, other personal effects or the person of any employee, where there is a reasonable basis or probable cause to believe that the employee is in possession of, and/or concealing drugs, alcohol, stolen property, or property possessed or concealed without authorization upon the premises and/or on the employee's person and to take possession of such items where so found or discovered.

There should be reasonable or probable cause to believe that an employee possesses or is concealing drugs, alcohol, stolen property, or other property prior to undertaking any search. For example, reasonable or probable cause can be established if there is suspected possession, control, distribution, or sale of any drug. This can include the receipt of reliable information that the camp's policy with regard to drugs has been violated. While it is not possible to provide a definition of "reasonable or probable cause" that will fit every case, the factors which lead to a search decision should only be that which would cause a reasonable person, acting in good faith, to suspect that a violation of the camp's policies has occurred. Examples of reasonable basis or probable cause may include, for example:

• Observing an individual in possession of something that appears to be prohibited;
• Observing prohibited item(s) in an employee's desk or locker or other area under control of the employee; or
• Timely notification from a reliable source that the employee possesses or is concealing a prohibited item.

The turning of the search should be related to the purpose of the search. Searches should not be random.

Guidelines for Searches

In any case, when reasonable or probable cause exists, follow these guidelines strictly. Where a supervisor or department head has been specifically told by competent witnesses or the subject employee that any such item is currently possessed or concealed in a locker, desk, or cabinet, or a supervisor or department head actually sees that any such item is currently possessed or concealed in any such location, that supervisor or department head should:

• Contact: (the camp director). If they are not in-house, call and have them report to the camp immediately. If they cannot be located, contact the Administrator on call and request that he/she report immediately. No search may be undertaken under this policy without the permission of the camp director or, in his/her absence, the Administrator on call.
• The designated management employee should then contact the subject employee. In the presence of that employee, he/she should be advised that the camp policy allows the camp to conduct searches and that he/she is being asked to submit to a search of his/her locker, desk, cabinet, etc. The employee should also be advised that there is reasonable suspicion to believe that a prohibited item is contained in the area to be searched. The employee's permission to search should always be requested.
• The subject employee should be advised that, as an alternative to a search, he/she may voluntarily produce the item that is suspected to be in the area to be searched.
  n If the subject employee refuses, the search should not be undertaken by force. If the employee refuses to promptly cooperate and submit to the search, he/she should be advised that refusal constitutes insubordination which will subject him/her to discipline for that offense, which discipline may include dismissal. Physical contact with and/or restraint of an individual is only a last resort and should only be undertaken if there is a reasonable belief that the safety of other individuals or property is at stake.
• If the subject employee grants permission for the search, the search of the locker, desk, cabinet, etc. should be undertaken immediately and in the presence of the employee and the above-designated management employees.
• All searches must be conducted in a uniform and nondiscriminatory manner.
• No individual may be harassed prior to, during or after a search. Each search must be undertaken with due respect for the individual and with professionalism.
• If the incident involves more than one individual, separate them and take them to a location where they can be questioned individually about the incident.

Chain of Custody

If a prohibited item is found, confiscate it, establish a chain of custody, and follow these chain-of-custody precautions:

1. If drugs/alcohol/unauthorized property is found, it should be confiscated immediately. It should then be placed in an envelope or container large enough to hold the item(s). The envelope should be securely sealed. A receipt should be provided to the individual from whom the item is confiscated and he/she should be advised that the item may be returned to him/her after the camp makes a determination as to its response and after the resolution of any legal or administrative proceeding involving the item
2. The name of the individual searched, the date, and the time of the search should be written on the envelope. In addition, the envelope should be signed by the individual performing the search, as well as any witness(es).
3. The envelope should be given to a camp officer who shall, in turn, deliver it to the camp director and the officer shall place the envelope in the camp's safe. This individual may, if appropriate and if law enforcement authorities are involved, turn the property over to such authorities. A receipt should be requested and received from law enforcement authorities before the property is given to them. The receipt must include an accurate and detailed description of the property.
4. The envelope must be stored in a safe place and arrangements made for the further inspection of the property if there is any doubt as to whether it is prohibited under the camp policy.
5. A strict record of custody should be maintained at all times. Possible fingerprint verification should be kept in mind where possession or control is denied. No fingerprints of the searchers should be added to the weapon. If the property is further analyzed, the date and time that it is sent for analysis should be recorded in addition to the name of the person to whom custody was given. Also, a detailed and accurate receipt should be written and tendered.
6. If the property is returned to the camp, the record of custody must be continued until such time as any administrative matter involving the property is concluded and not until the camp's decision in the matter is upheld, reversed, or can no longer be challenged.

• If prohibited item(s) are found, ask the subject employee for an explanation of the matter.
• If alcohol or drugs are discovered, suspend the employee, or if the employee appears to be under the influence of alcohol/drugs, follow written camp policies.
• If nothing is discovered, the subject employee should be advised that he/she should return to work.

Prepare a Written Report

Regardless of the results of the search, the person who performs a search must prepare a detailed and accurate written report for the camp immediately following the search, and send such report to the camp director. At a minimum, the report must contain:

• The date, time, and place of the search;
• The name of the individual searched;
• A statement of the reasons why the search was conducted;
• The names of any witnesses;
• A written statement from the witness(es); and
• The results of the search and a description of the camp's reaction to finding any prohibited item, i.e. discipline, order to leave the premises, etc., and the individual's response to the camp's reaction.

The written report will be kept by the camp director. All information relating to the search must remain confidential.

We advise you to include in you handbooks a statement informing employees that from time to time, it may be necessary for you to conduct investigation that may include inspections of their person or personal property. An employee is expected to cooperate with such investigations as a condition of employment and failure to do so could result in termination. This is known as a "cooperation rule."

A cooperation rule puts an employee on notice that as a condition of employment, he or she may be required to submit to a search. Courts feel more comfortable when employees have advance notice of such a requirement, and when courts feel more comfortable, so should you.

Originally published in the 1998 Fall issue of The CampLine.