Much Ado About Nothing?: Montville, New Jersey’s Underage Drinking Ordinance and What’s Left of the 4th Amendment

There’s been some discussion of a new ordinance in Montville, N.J. that supposedly allows police officers to enter homes at will (or at least upon probable cause) that underage consumption of alcohol is occurring on the premises. The news reports have some truth in them, but are also not complete.

Under current state law, it is illegal for a person to provide, offer, or make alcohol available to an underage person, or to provide a place for underage persons to consume alcohol. N.J.S.A. 2C:33-17 categorizes this as a disorderly persons offense, meaning that a person can spend up to six months in jail and pay fines up to $1,000. (The underage consumer is penalized only if he or she is consuming alcohol in public). Prior to Montville’s ordinance, a police officer with probable cause that (1) a violation of state law is occurring and (2) a person is in danger or evidence will be destroyed, may enter the property without a warrant. Under Montville’s ordinance, the officer still needs to have reasonable suspicion that a violation is occurring and there must still be exigent circumstances. Thankfully, searches of homes and offices are still considered to be somewhat protected from warrantless searches, so police officers can only search your home if exigent circumstances exist (i.e. there’s a really pressing reason they can’t get a warrant). Whether the definition of “exigent circumstances” has become a bit too loose as of late can certainly be debated, but, in theory, the protections for the home remain and, at a minimum, receive homage and lip service from the courts.

While the Montville ordinance really doesn’t affect the 4th Amendment rights of its residents, it does affect their criminal liability in underage drinking incidents. The two major differences between state law and Montville’s ordinance are: (1) state law applies to the homeowner, rather than the underage drinker, on private property, while the Montivlle ordinance applies to the individual consuming the alcohol on private property, and (2) the penalties for Montville’s ordinance are far less severe than the state penalties.

Up until 2000, a police officer confronted with a report of underage drinking at a private residence had one of two options: charge the parents with a violation of N.J.S.A. 2C:33-17, or look the other way. Under New Jersey law, underage consumption of alcohol is illegal for the underage consumer when he or she consumes alcohol in public. The parents or homeowners, however, are penalized when the underage drinking occurs in a private setting. Recognizing that there was no “slap on the wrist” type of penalty for underage drinkers in a private setting, and knowing that police were at least sometimes hesitant to charge parents and homeowners with disorderly persons offenses for allowing underage drinking, the New Jersey legislature passed N.J.S.A. 40:48-1.2 in 2000, which allowed municipalities to pass ordinances dealing with underage drinking. Montville’s ordinance is a direct result of this law, mirroring its language and penalties.

Montville’s ordinance makes it a municipal offense – punishable by $250 or $350, depending on the number of prior offenses – for underage persons to consume alcohol on private property. While providing the same statewide exceptions for religious purposes or with parental permission and in the presence of the parent, the Montville ordinance provides police officers with a third option. Rather than penalize the owner of the house or walk away, the officer has the option of providing a penalty directly to the underage person consuming alcohol. The town is selling this as an alternative to the harsher state penalties: whether this will be an additional charge or an alternative charge will remain to be seen (one hopes that the officers don’t take the opportunity to charge both the individual under the ordinance and the homeowner with the state offense, although it is certainly a possibility).

Regardless of whether police officers enforce the ordinance in conjunction with the state law or not, the primary concern (if the news reports are to be believed) is the ability of police officers to enter homes without a warrant to investigate underage drinking. Nothing in the ordinance suggests that it grants new 4th Amendment-eroding powers to the police. Under Montville’s ordinance, a police officer still needs both probable cause that an underage person is consuming alcohol without parental permission and in the presence of the parent, and exigent circumstances must exist. Thus, from a 4th Amendment standpoint, nothing changed in New Jersey. Whether current 4th Amendment jurisprudence adequately protects our rights from the government, however, is a different question altogether.

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