Shannon MONTGOMERY, Appellant,
v.
STATE of Florida, Appellee.
District Court of Appeal of Florida, Fifth District.
*1025 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,
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.
*1026 (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,
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,
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 decision"any 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,
*1027 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,
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 *1028 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,
Overbreadth
"[T]he doctrines of overbreadth and vagueness are separate and distinct." Se. Fisheries Ass'n,
Due to the importance of the interests that the doctrine of overbreadth protects, litigants need not meet the traditional requirement of standing. Broadrick v. Oklahoma,
Restrictions on First Amendment rights must be supported by a compelling governmental interest, and must be narrowly drawn to insure that there is no more infringement than is necessary. Firestone,
In Davis, this Court wrote:
Davis' free speech argument is also unavailing. The ordinance addresses noise not speech. In Clark v. Community for Creative Non-Violence,468 U.S. 288 , 293,104 S.Ct. 3065 , 3068-69,82 L.Ed.2d 221 (1984), the United States Supreme Court held that it is appropriate to impose reasonable restrictions on the time, place, and manner of protected speech. In order for the regulation to be valid, it must: (1) be content neutral; (2) narrowly tailored; and (3) leave open alternative channels. The ordinance herein does not address content at all; it narrows its application to sounds that are *1030 plainly audible 100 feet or further away; and it permits one to listen to anything he or she wishes so long as it cannot be heard at the prohibited distance. In other words, the statute permits one to listen to anything he or she pleases, although not as loudly as one pleases....
As previously discussed, music, including amplified music, is protected under the First Amendment. See Ward,
Section 316.3045(1)(a) is not content neutral, and therefore, a strict scrutiny standard of judicial review applies. See, e.g., Simmons v. State,
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. The court determined that the statute violates the First Amendment since the volume of commercial and political messages poses the same concern to the public as any other noise. The court explained:
*1031 Analysis of the regulation of speech begins with whether the regulation is content-based or content-neutral. See KH Outdoor, LLC v. City of Trussville,458 F.3d 1261 , 1268-69 (11th Cir.2006). An intermediate level of judicial scrutiny is used where the regulation is unrelated to content. Turner Broad. Sys., Inc. v. Fed. Commc'ns Comm'n,512 U.S. 622 , 642-43,114 S.Ct. 2445 ,129 L.Ed.2d 497 (1994). On the other hand, where a regulation suppresses, disadvantages or imposes differential burdens upon speech because of its content, "the most exacting scrutiny" must be applied. Id. Such content-based discrimination is "presumptively impermissible" and will be upheld only if it is narrowly tailored to serve a compelling state interest with the least possible burden on expression. City of Ladue v. Gilleo,512 U.S. 43 , 59,114 S.Ct. 2038 ,129 L.Ed.2d 36 (1994); Widmar v. Vincent,454 U.S. 263 , 270,102 S.Ct. 269 ,70 L.Ed.2d 440 (1981). "At the heart of the First Amendment lies the principle that each person should decide for himself or herself the ideas and beliefs deserving of expression, consideration, and adherence." Turner Broad. Sys.,512 U.S. at 641 ,114 S.Ct. 2445 .
In DA Mortgage[, Inc. v. City of Miami,486 F.3d 1254 (11th Cir.2007)], the court upheld a county noise ordinance because it was content-neutral, was narrowly tailored to achieve a significant government interest, and left open ample alternative channels of communication.486 F.3d at 1266-69 . In upholding the statute against a challenge of being content-based, the court stated:
Accordingly, when we apply this standard to the ordinance at issue, we find, as the district court did, that the ordinance is content-neutral. On its face, it does not disallow certain types of recorded noise or particular viewpoints. It does not distinguish, for example, between excessively loud singing, thunderous classical music recordings, reverberating bass beats, or television broadcasts of raucous World Cup soccer finals. It simply prohibits excessively loud noise from recorded sources, whether radio, television, phonographs, etc.
Id. at 1266. Unlike the statute in DA Mortgage, the statute in our case does distinguish between different types of recorded noise or particular viewpoints.
A case that is directly on point, and was cited favorably in Cannon, is People v. Jones,188 Ill.2d 352 ,242 Ill.Dec. 267 ,721 N.E.2d 546 (1999). In that case, the court held that a sound amplification statute, which prohibited the use of sound amplification systems in motor vehicles that could be heard from a specified distance away from a vehicle and which contained an exception for vehicles engaged in advertising, was a content-based regulation of speech, in violation of the First Amendment. Id. at 551-51[sic]. In Jones, the Illinois Supreme Court, citing Carey v. Brown,447 U.S. 455 , 462,100 S.Ct. 2286 ,65 L.Ed.2d 263 (1980), noted that "generally, laws that by their terms distinguish favored speech from disfavored speech on the basis of the ideas or views expressed are content-based." Id. at 550,100 S.Ct. 2286 . The court struck the statute, finding, "the statute favors advertising messages over other messages by allowing only the former to be broadcast at a particular volume." Id. at 552,100 S.Ct. 2286 . In so ruling, the court rejected the State's argument that the statute was content-neutral because it was not enacted with the purpose of discriminating against any particular expression. Id. The fundamental problem with the analysis, according to the court, was that "on its face" the statute discriminated based on content. Id. This is the same *1032 fundamental problem with the statute in our case.
Finally, the United States Supreme Court discussed the content-neutrality requirement for permissible "time, place or manner" regulations in City of Cincinnati v. Discovery Network, Inc.,507 U.S. 410 ,113 S.Ct. 1505 ,123 L.Ed.2d 99 (1993). In that case, the city refused to allow distribution of commercial publications through freestanding newsracks on public property but allowed the distribution of newspapers in that manner. Id. at 412-14,113 S.Ct. 1505 . The city argued that its regulation was designed to limit the total number of newsracks, for reasons of safety and aesthetics. Id. at 428-29,113 S.Ct. 1505 . Therefore, according to the city, the regulation was a permissible time, place and manner restriction. Id. The Court rejected this argument. Id. In so ruling, the Court gave the following illustration which is instructive in our case: "[A] prohibition against the use of sound trucks emitting `loud and raucous' noise in residential neighborhoods is permissible if it applies equally to music, political speech, and advertising." Id. at 428-29,113 S.Ct. 1505 (emphasis added) (citing Kovacs v. Cooper,336 U.S. 77 ,69 S.Ct. 448 ,93 L.Ed. 513 (1949)).
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). In other words, an individual using a vehicle for business purposes could, for example, listen to political talk radio at a volume clearly audible from a quarter mile; however, an individual sitting in a personal vehicle that is parked next to the business vehicle is subject to a citation if the individual is listening to music or religious programming that is clearly audible at twenty-five feet. Clearly, different forms of speech receive different treatment under the Florida statute. That is, the statute in question does not "apply equally to music, political speech and advertising," which is what the Supreme Court requires in order for the statute to be deemed, "content-neutral." See City of Cincinnati,507 U.S. at 428 ,113 S.Ct. 1505 .
Given that the statute is a content-based restriction on protected expression, it is presumptively invalid and may be upheld only if it is necessary to serve a compelling state interest and is narrowly drawn to achieve that end. Jones,242 Ill.Dec. 267 ,721 N.E.2d at 550 . We fail to see how the interests asserted by the State are better served by the statute's exemption for commercial and political speech. As in Jones, the State provides no explanation as to why a noncommercial message broadcast at a particular volume poses a danger to the public, while a commercial or political message does not. Further, as with the statute in Jones, the Florida statute is peculiar in protecting commercial speech to a greater degree than noncommercial speech. Commercial speech is typically in a "subordinate position" in the scale of First Amendment values. U.S. v. Edge Broad. Co.,509 U.S. 418 , 430,113 S.Ct. 2696 ,125 L.Ed.2d 345 (1993).
Catalano,
*1033 Good Faith
Finally, we must consider whether the police officer's good faith reliance on the statute serves as an exception to the exclusionary rule. The exclusionary rule is a judicially-created remedy adopted to protect Fourth Amendment rights by deterring illegal searches and seizures. Davis v. United States, ___ U.S. ___, ___,
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. This is particularly true because in Davis, this Court upheld an earlier version of the statute against a constitutional challenge. Exclusion of the drugs and drug paraphernalia found in Montgomery's car would have no deterrent effect on future police misconduct whatsoever. See United States v. Master,
AFFIRMED.
PALMER and EVANDER, JJ., concur.
NOTES
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. See ch. 05-164, § 9, Laws of Fla., eff. July 1, 2005.
[2] Our holding is consistent with decisions of other states upholding statutes that prohibit audible noises based on a distance standard. See, e.g., Moore v. City of Montgomery,
[3] Montgomery's remaining point, challenging the search of his vehicle under Arizona v. Gant,