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Noise Statute Unconstitutional

On September 16th the Fifth District Court of Appeals declared Florida Statute 316.3045 (1 ) ( a ) unconstitutionally overbroad and found that it restricted the right of free expression. This ruling was consistent with a prior ruling of the Second District Court of Appeals from May of this year in a case styled as State of Florida v. Catalano 60 So. 3d 1139 ( Fla. 2nd DCA , 2011).

In the most recent case , Shannon Montgomery decided to exercise his first amendment protected free speech rights by playing loud music with great enthusiasm . His enjoyment quickly came to a halt when he was pulled over for a noise violation. After discovering his driver’s license was suspended , law enforcement arrested Mr. Montgomery , searched his vehicle , and located a small amount of cannabis, drug paraphernalia, and greater than 28 grams of cocaine , a trafficking quantity. He then challenged the lawfulness of the traffic stop on the grounds that the noise violation statute was unconstitutionally vague and overbroad and restricted his right of free expression.

The appellate court did not agree that the statute was unconstitutionally vague ( which was no great surprise as this same court in 1998 rejected a similar challenge when the statute required the sound to be heard at a distance of more than 100 feet) . Nevertheless, the Court did agree the statute was unconstitutionally overbroad ( a claim not raised in the 98' challenge) and that it was a content-based restriction on free expression , which violates protected First Amendment rights in a manner more intrusive than necessary.

The District Court applied a strict scrutiny standard of review since it found the statute was not content neutral. In fact , Florida Statute 316.3045 (1 ) (a) exempts from its reach any amplified business or political speech. As the Court pointed out , amplified rock music which could be heard from 25 feet away would violate the statute but a sound truck blaring " Eat at Joes" or "Vote for Smith" plainly audible at a greater distance would be authorized under the wording of the statute . The Court went further and stated " clearly , the statute discriminates on the basis of content , not noise".

While the motoring public may now enjoy a little rock and roll while heading down the highway, unfortunately , Mr. Montgomery will continue to serve the remainder of his 5 year prison sentence. Despite convincing the appeals court that the statute for which he was pulled over was unconstitutional , the court refused to suppress the evidence located after the traffic stop since it found that the law enforcement officers involved in the stop acted in " good faith" . Since the primary purpose of excluding evidence is to deter future unlawful conduct , the rule would not apply when an officer acts in objectively reasonable reliance on a statute which is subsequently invalidated. The court concluded that a reasonable officer would not have known that this particular noise statute was unconstitutional at the time Montgomery’s vehicle was stopped.

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