Montgomery v. State

Decision Date16 September 2011
Docket NumberNo. 5D10–1500.,5D10–1500.
PartiesShannon MONTGOMERY, Appellant,v.STATE of Florida, Appellee.
CourtFlorida District Court of Appeals

OPINION TEXT STARTS HEREWest CodenotesHeld UnconstitutionalWest's F.S.A. § 316.3045(1)(a) James S. Purdy, Public Defender, and Christopher S. Quarles, Assistant Public Defender, Daytona Beach, for Appellant.Pamela Jo Bondi, Attorney General, Tallahassee, and Megan Saillant, Assistant Attorney General, Daytona Beach, for Appellee.ORFINGER, C.J.

“Music, as a form of expression and communication, is protected under the First Amendment.” Ward v. Rock Against Racism, 491 U.S. 781, 790, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989). This protection extends to amplified music. See Saia v. New York, 334 U.S. 558, 68 S.Ct. 1148, 92 L.Ed. 1574 (1948) (holding use of sound amplification equipment within reasonable limits is aspect of free speech protected by First Amendment). Shannon Montgomery exercised his right to play loud music from his car with great enthusiasm—enough in fact to draw the attention of the police who pulled him over for a noise violation. When it was discovered that his driver's license was suspended, he was arrested and his car was searched. The police found drugs and drug paraphernalia in the car.

After being charged with trafficking in cocaine 28 grams or more, driving while license revoked as a habitual 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.(1) It 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:

(a) Plainly audible at a distance of 25 feet or more from the motor vehicle;

....

(3) The provisions of this section do not apply to motor vehicles used for business or political purposes, which in the normal course of conducting such business use soundmaking devices. The provisions of this subsection shall not be deemed to prevent local authorities, with respect to streets and highways under their jurisdiction and within the reasonable exercise of the police power, from regulating the time and manner in which such business may be operated.

Following a hearing, the trial court denied Montgomery's motion. Montgomery then entered a plea of nolo contendere, reserving his right to appeal the court's denial of the dispositive motion to suppress.

Standard of Review

A trial court's decision regarding the constitutionality of a statute is reviewed de novo as it presents a pure question of law. Caribbean Conservation Corp. v. Fla. Fish & Wildlife Conservation Comm'n, 838 So.2d 492, 500 (Fla.2003); State v. Hanna, 901 So.2d 201, 204 (Fla. 5th DCA 2005) (“The interpretation of a statute or an ordinance is a purely legal matter and is subject to de novo review.”). There is a strong presumption that a statute is constitutionally valid, and all reasonable doubts about the statute's validity must be resolved in favor of constitutionality. See DuFresne v. State, 826 So.2d 272, 274 (Fla.2002); Adhin v. First Horizon Home Loans, 44 So.3d 1245, 1250 (Fla. 5th DCA 2010). As a result, the party challenging the constitutionality of a statute bears a heavy burden of establishing its invalidity. See Wright v. State, 739 So.2d 1230, 1231 (Fla. 1st DCA 1999).

Vagueness

Montgomery argues that the statute's “plainly audible” standard is impermissibly vague and fails to provide fair notice to an ordinary person of what conduct is prohibited. Montgomery finds support for his vagueness challenge in Easy Way of Lee County, Inc. v. Lee County, 674 So.2d 863, 867 (Fla. 2d DCA 1996). 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. 674 So.2d at 863. Although the court did quote the Reeves[v. McConn, 631 F.2d 377, 385 (5th Cir.1980),] language cited above, it also stated that “the ordinance does not define its crucial terms ‘plainly audible’ so as to secure against arbitrary enforcement.” Id. at 866. The court reasoned that the “plainly audible” standard represented the subjective standard that was discussed in the Reeves decisionany individual person ‘within the area of audibility’ happens to find personally ‘disturbing,’ —not because the term “plainly audible” was being 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. State, 710 So.2d 635 (Fla. 5th DCA 1998), explaining:

This noise code is not vague. One may not play his or her car radio so loudly that it is plainly audible to another standing 100 feet or further away. Noise ordinances based on distances beyond which the sound may not be audible have been upheld. See State v. Ewing, 81 Hawai‘i 156, 914 P.2d 549 (1996); City of Portland v. Ayers, 93 Or.App. 731, 764 P.2d 556 (1988), rev. denied, 308 Or. 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. See Fla. Admin. Code R. 15B–13.001 (adopted Nov. 21, 2006). 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.

(2) “Plainly Audible” shall mean any sound produced by a radio, tape player, or other mechanical or electronic soundmaking device, or instrument, from within the interior or exterior of a motor vehicle, including sound produced by a portable soundmaking device, that can be clearly heard outside the vehicle by a person using his normal hearing faculties, at a distance of twenty-five feet (25 § ) or more from the motor vehicle.

(3) Any law enforcement personnel who hears a sound that is plainly audible, as defined herein, shall be entitled to measure the sound according to the following standards:

(a) The primary means of detection shall be by means of the officer's ordinary auditory senses, so long as the officer's hearing is not enhanced by any mechanical device, such as a microphone or hearing aid.

(b) The officer must have a direct line of sight and hearing, to the motor vehicle producing the sound so that he can readily identify the offending motor vehicle and the distance involved.

(c) The officer need not determine the particular words or phrases being produced or the name of any song or artist producing the sound. The detection of a rhythmic bass reverberating type sound is sufficient to constitute a plainly audible sound.

(d) The motor vehicle from which the sound is produced must be located upon (stopped, standing or moving) any street or highway as defined by Section 316.002(53), F.S. Parking lots and driveways are included when any part thereof is open to the public for purposes of vehicular traffic.

(4) The standards set forth in subsection (3) above shall also apply to the detection of sound that is louder than necessary for the convenient hearing of persons inside the motor vehicle in areas adjoining churches, schools, or hospitals.

See also Webster's Tenth New Collegiate Dictionary 75, 886 (10th ed. 2000) (defining “plain” as “clear” and “audible” as “heard or capable of being heard”).

A vague statute is one that fails to give a person of common intelligence fair and adequate notice of what conduct is prohibited and which, because of its imprecision, may also invite arbitrary and discriminatory enforcement. Brown v. State, 629 So.2d 841, 842 (Fla.1994); Se. Fisheries Ass'n v. Dep't of Natural Res., 453 So.2d 1351, 1353 (Fla.1984). A statute is not unconstitutionally vague if the language “conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices.” Brown, 629 So.2d at 842 (citations omitted). We believe the statute here provides fair notice of the prohibited conduct: it is a violation to operate or amplify the sound inside a vehicle in the state of Florida, so that it is capable of being clearly heard outside of the vehicle at a distance greater than 25 feet. The distance...

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