Amid developing controversy over a possible ordinance that would permit police to fine underage drinkers on private property, some constitutional experts are raising questions about issues of civil liberties connected with the law.
Prompted by recently passed state legislation — allowing municipalities to give police the power to issue summons to underage drinkers on private property — at least 30 towns across the state including Princeton Borough are considering ordinances that would stamp violators with fines of $200 for the first offense and $350 for subsequent offenses.
But, McCormick Professor of Jurisprudence Robert George said the bill is unconstitutional because police cannot enter private property simply because they witness a party or suspect underage drinking.
Probable cause
"It doesn't look like probable cause is being respected," George said. "They need a legitimate reason. They can't just break up a party."
State Sen. Anthony Bucco (R-Morris), who sponsored the bill, emphasized that the legislation allows for police to enter private property with the primary motive of citing underage drinkers.
But George said police would require another legal reason to be on private property to issue a summons for illegal activity.
"They need a probable cause to justify entrance," he said. "Then whatever's in plain view is fair game."
State Sen. Leonard Connors (R-Atlantic-Burlington-Ocean), who also sponsored the legislation, said the bill does not allow police to enter someone's home without permission, but added that officers can enforce noise ordinances without a filed complaint.
"If they mind their own business, police can't touch them," he said, "but if they get too rowdy . . ."
The senators' interpretation could serve as a guideline for enforcing the ordinance if Princeton Borough were to adopt such measures. According to Borough Police Capt. Charles Davall, the Borough has a noise ordinance.
Bucco said the state law does not specifically address enforcement of such an ordinance, but that individual police departments can determine whether an ordinance is appropriate for their towns and how they wish to enforce it.
Bucco added that he did not believe the law was unconstitutional.
"It would have been challenged already if it were," he said.
This ordinance represents a recent trend toward looser restrictions governing police jurisdiction for private property.
"Over the last 20 to 30 years, the court has worked out a complicated list of exceptions that allow police more leeway," said Keith Whittington, a University politics professor, who teaches courses in constitutional theory and interpretation.
Oliver v. United States
In the 1984 case, Oliver v. United States, the Supreme Court allowed a warrantless search of land, where police suspected the owner was growing marijuana, according to Whittington.
The police viewed the plants in a fenced area while flying over it in a helicopter. The court permitted the aerial observation as evidence, regardless of police motive.
Though both Connors and Bucco sponsored the law, different concerns pushed them to advocate the bill.
While Bucco pointed to the disruptive behavior associated with underage drinking at graduation parties in his district, Connors pointed to serious health risks associated with drinking.
He cited an Atlantic City Press article that followed 13 teenagers for a wild, alcohol-fueled weekend at a rented apartment in Ship Bottom, a shore town that has already adopted the ordinance.
"These kids were playing pong ball and games like that until they passed out," Connors said. "They had a separate refrigerator just for the beer."
Two major aftershocks are shaking the state as an increasing number of municipalities begin to consider the law.
Some officials laud its possible role in helping to curb underage drinking while others debate its implications on civil liberties and the extent of police powers.
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