The 5th’s Take On “Catalano”

Two police car accidents

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MONTGOMERY v. STATE, 36 Fla. L. Weekly D2046a (Fla. 5th DCA. Sep 16, 2011): Defense Appeal, Affirmed – This case deals with the constitutionality of section 316.3045(1)(a), Fla. Stat. This statute was earlier found unconstitutional in State v. Catalano, 60 So. 3d 1139 [36 Fla. L. Weekly D991a] (Fla. 2d DCA 2011). This is the 5th District Court of Appeal’s view on this issue;


A trial court’s decision regarding the constitutionality of a statute is reviewed de novo as it presents a pure question of law. 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. As a result, the party challenging the constitutionality of a statute bears a heavy burden of establishing its invalidity. When considering the constitutionality of a statute, we first look at the language of the statute itself.

Emphasis is mine.

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).

The 5th refers to FAC language to address the statute’s vagueness. Is this another presumption on the common man’s knowledge.

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. 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.” We believe that the “plainly audible” standard is no less precise than the “loud and raucous” standard approved by the United States Supreme Court in City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 428-29 (1993).

In a theater, “plainly audible” may or may not attract a “shhh” from another patron. We don’t know until the “shhh” is heard. “Loud and raucous” demands a call to staff to remove the unruly patron. I would disagree with the 5th’s view on the comparable “precision” of the standards.


The overbreadth doctrine applies when legislation criminalizes constitutionally protected activities along with unprotected activities, by sweeping too broadly and infringing upon fundamental rights. In the context of the First Amendment, an overbroad statute is one that restricts protected speech or conduct along with unprotected speech or conduct. “The overbreadth doctrine prohibits the Government from banning unprotected speech if a substantial amount of protected speech is prohibited or chilled in the process.” Ashcroft v. Free Speech Coalition, 535 U.S. 234, 255 (2002). As the United States Supreme Court explained, “[b]ecause First Amendment freedoms need breathing space to survive, government may regulate in the area only with narrow specificity.” NAACP v. Button, 371 U.S. 415, 433 (1963).

In this case, music or a religious message amplified so as to be heard twenty-five feet away from a vehicle would violate the statute, while a sound truck 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.


Finally, we must consider whether the police officer’s good faith reliance on the statute serves as an exception to the exclusionary rule.

The question becomes can “good faith” trump the constitution? If yes, then unconstitutional statutes would have full force and affect until a case arose to put law enforcement on notice. Afterwards, law enforcement would still be required to enforce the unconstitutional law (until amended or deleted by the legislature) and it would be up to the defendant to point out the error. The citizen would then bear the heavy burden of defense. This is the same argument being used in pre-Gant cases today.

The exclusionary rule is a judicially-created remedy adopted to protect Fourth Amendment rights by deterring illegal searches and seizures. Davis v. United States, 131 S. Ct. 2419, 2426 (2011). The primary purpose of the exclusionary rule is to “deter future unlawful conduct,” Stone v. Powell, 428 U.S. 465, 486 (1976), the rule has not been applied in certain circumstances, such as when an officer acts in objectively reasonable reliance on a subsequently invalidated statute, Illinois v. Krull, 480 U.S. 340, 355 (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. 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.  Accordingly, although we conclude that Montgomery suffered a Fourth Amendment violation, he is not entitled to suppression of the drugs and drug paraphernalia, and the suppression motion was properly denied. See United States v. Calandra, 414 U.S. 338, 347 (1974) (recognizing that exclusionary rule’s primary purpose is to deter future unlawful police conduct, not repair it, and thus, not designed to safeguard personal constitutional right of party aggrieved).

Addendum: Shannon Montgomery was not the sharpest knife in the drawer and a little forethought regarding his personal situation would have avoided all of this. However, he 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. (Gant?) The police found drugs and drug paraphernalia in the car.

After being charged with trafficking in cocaine 28 grams or more (min man), 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.

What is the saying, “An ounce of prevention is worth a pound of cure.” – Ben Franklin.

Eric J Dirga, PA

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