CopyCited 13 times | Published | Florida 5th District Court of Appeal | 2011 WL 4102292
...tual offender, possession of cannabis 20 grams or less, and possession of drug paraphernalia, Montgomery filed a motion to suppress, contending that the evidence was illegally obtained. Specifically, Montgomery asserted that Florida's noise statute, section 316.3045(1)(a), Florida Statutes (2005), was unconstitutionally vague and overbroad and restricted his right of free expression. Section 316.3045, Florida Statutes (2005), provides, in pertinent part: Operation of radios or other mechanical soundmaking devices or instruments in vehicles; exemptions. *1026 (1) It is unlawful for any person operating or occupying a motor vehic...
...In Easy Way, the "plainly audible" standard in a county noise ordinance was found to be unconstitutionally vague and overbroad. More recently, in State v. Catalano,
60 So.3d 1139, 1143-44 (Fla. 2d DCA 2011), the Second District Court of Appeal again addressed the "plainly audible" standard in a challenge to section
316.3045, writing: The challenge in Easy Way was a facial challenge....
...ng applied subjectively, but because the term "plainly audible" was a subjective term on its face; thus, the court found it vague. Id. at 867. But, Montgomery correctly observes that this Court rejected a vagueness challenge to an earlier version of section 316.3045 in Davis v....
...79, 775 P.2d 322 (1989). Id. at 636. [1] When considering the constitutionality of a statute, we first look at the language of the statute itself. See State v. Dugan,
685 So.2d 1210, 1212 (Fla.1996); Miele v. Prudential-Bache Sec., Inc.,
656 So.2d 470, 472 (Fla.1995). Section
316.3045(1)(a) provides, in pertinent part, that "[i]t is unlawful for any person operating or occupying a motor vehicle on a street or highway to operate or amplify the sound produced by a radio, tape player, or other mechanical soundmaking device or instrument from within the motor vehicle so that the sound is ... [p]lainly audible at a distance of 25 feet or more from the motor vehicle...." Although the phrase "plainly audible" is not defined by statute, pursuant to section
316.3045(4), the Department of Highway Safety and Motor Vehicles has promulgated rules defining "plainly audible" and established standards for how sound is measured by law enforcement personnel enforcing the statute....
...Specifically, rule 15B-13.001 states: 15B-13.001. Operation of Soundmaking Devices in Motor Vehicles. (1) The purpose of this rule is to set forth the definition of the term "plainly audible" and establish standards regarding how sound should be measured by law enforcement personnel who enforce Section 316.3045, F.S....
...narrowly tailored to serve a significant governmental interest, and ... leave open ample alternative channels for communication of the information." Ward,
491 U.S. at 791,
109 S.Ct. 2746 (quoting Clark v. Cmty. for Creative Non-Violence,
468 U.S. 288, 293,
104 S.Ct. 3065,
82 L.Ed.2d 221 (1984)). Section
316.3045(1)(a) is not content neutral, and therefore, a strict scrutiny standard of judicial review applies....
...k blaring "Eat at Joe's" or "Vote for Smith" plainly audible at a great distance, would be authorized. Clearly, the statute discriminates on the basis of content, not noise. The Second District reached the same conclusion in Catalano, and found that section 316.3045 was unconstitutionally overbroad as a content-based restriction on free expression....
...Turning our attention to the Florida statute at issue, on its face it is not content neutral. The statute excepts from its provisions "motor vehicles used for business or political purposes, which in the normal course of conducting such business use soundmaking devices." § 316.3045(3)....
...ed statute, Illinois v. Krull,
480 U.S. 340, 355,
107 S.Ct. 1160,
94 L.Ed.2d 364 (1987). Applying the objective standard of reasonableness mandated by Krull to the facts presented here, we conclude that a reasonable officer would not have known that section
316.3045(1)(a) was unconstitutional at the time that Montgomery's vehicle was stopped for playing excessively loud amplified music....
...e is to deter future unlawful police conduct, not repair it, and thus, not designed to safeguard personal constitutional right of party aggrieved). [3] AFFIRMED. PALMER and EVANDER, JJ., concur. NOTES [1] After Davis, the Florida Legislature amended section 316.3045(1)(a) by reducing the "plainly audible" distance from 100 feet to 25 feet....
CopyCited 5 times | Published | Florida 5th District Court of Appeal | 1998 WL 150696
...For example, if an officer observes garbage being thrown from a vehicle, or that the driver is driving naked, or sees a driver shoot at a pedestrian, a stop would appear appropriate. In this case, a violation of the noise statute justified the stop. AFFIRMED. GRIFFIN, C.J., and DAUKSCH, J., concur. NOTES [1] Section 316.3045, Florida Statutes (1997).
