TOPEKA POLICE DEPARTMENT

TOPEKA POLICE DEPARTMENT	Number: LB 02-04
LEGAL BULLETIN
SUBJECT: HANDLING NOISE COMPLAINTS
AMENDS:
STATUTE REFERENCES:
ISSUING AUTHORITY: John Knoll, City Attorney	DATE ISSUED: 28 June 2002

Chief Klumpp asked me to respond to the following request:

We seem to have a great deal of confusion over what types of noise complaints we have to have a complainant for and which ones we don't. This has caused an "assumed guideline" to be informally implemented that results in dispatch not sending officers to noise disturbance calls when the complainant doesn't want to talk to officers. This, obviously, is unacceptable. Can you put together some kind of legal bulletin or guide for us to clarify by ordinance when a complainant is needed and when officers can take action if they find loud noise? I will supplement it with a directive on how we will handle noise complaints The bottom line is that no noise complaint requires a complainant. If any officer hears a noise violation, or determines based on investigation there is probable cause to believe a noise violation occurred, the officer can cite the offender just as if the officer observes a traffic violation.

Having said that, I will explain that it is usually better if there is a complainant, because an officer hearing a noise violation is usually only momentarily disturbed. The city obviously has a much stronger case against the defendant if a citizen is willing to come to court and tell the court how frequent the noise is, that the noise typically wakes them up and makes it impossible to go back to sleep, and the noise deprives them of their own quiet enjoyment of the one sanctuary to which they can retreat and escape from the world - their home. While an officer can cite an offender, it is usually better to have an independent witness that has been disturbed by the noise sign the citation, or at least agree to appear as a witness if court proceedings are necessary.

In a typical example, a citizen calls in a loud music complaint (usually late at night). An officer or officers are dispatched to the call, and told that the caller refused. The offender sees a police car drive by or pull up to his residence, and immediately turns down the volume. The officer doesn't hear anything, advises dispatch the area is all quiet, and goes 10-8. As soon as the officer leaves, the volume goes back up again, disturbing the offender's neighbor, who calls dispatch and the vicious cycle repeats.[FN1].

[FN1 Text] 1. Another possibility exists due to the relatively low priority of noise complaints: By the time the officer is dispatched and arrives, the offender has ceased violating the ordinance.

I think part of the problem is how dispatchers question the complainant. From personal experience at calling in noise complaints, I know that dispatchers typically ask the caller "do you want to speak with officers." Anything short of "Yes, I'm willing to sign a ticket," usually results in dispatchers telling the officer the "caller refused," even if the caller told dispatchers they would speak to police "if necessary." I believe it would be better for dispatchers to ask callers "would you mind speaking with the police?" No caller really wants to talk to officers, particularly in the middle of the night when they are not dressed and have been awakened by the loud music of a neighbor. The caller just wants to complain and have the police take care of the problem without the caller's further involvement. For the reasons stated above in discussing the typical noise complaint, these complaints are usually not that simply resolved.

I believe callers would be more receptive to speak with officers if they are asked if they mind speaking with police if it is necessary to do so. I think it would also be helpful for dispatchers to tell complainants that if they do not want to visit with officers, the chance of officers catching the offender violating the ordinance become much slimmer. Perhaps this approach would result in fewer "caller refused" noise complaints, and lead to more convictions for violation of The Noise Ordinance.

On a related topic, officers (and apparently dispatchers) often misconstrue the provisions of The Noise Code. The number one complaint I hear from citizens is that officers tell citizens that the noise ordinance only applies after 11:00 o'clock p.m., and if the complaint is made prior to 11:00 p.m., the officer says, "there is nothing I can do." Neither statement is true. The noise ordinance applies 24 hours a day, seven days a week. I think the confusion results from the language in 54-150(b) dealing with loud music, which states:

The operation of any radio receiving set, musical instrument, phonograph, machine or device between the hours of 11:00 p.m. and 7:00 a.m. in such a manner as to be plainly audible at a distance of 50 feet from the building, structure or vehicle in which it is located shall be prima facie evidence of a violation of this section. (Emphasis added). This language does not mean the ordinance only applies between 2300 and 0700 hours. The italicized language merely creates a rebuttable presumption the offender violated the ordinance if the city introduces testimony the noise was plainly audible at a distance of 50 feet between 2300 and 0700 hours. If it's not after 2300 hours or the music is not plainly audible at a distance of 50 feet from the building, the offender can still be prosecuted under § 54-150(a), provided that someone (either a citizen or an officer) can testify the music was so loud as to disturb the peace, quiet and comfort of the neighboring inhabitants or was louder than necessary for convenient hearing of persons who are in the room, vehicle or chamber from which the music emanates.

Also, please note The Noise Code has several "considerations" the judge must take into account when considering noise cases. As I pointed out in Legal Bulletin 99-10:

The code sets forth some standards to use to determine if a noise violation is occurring or has occurred, which are: (1) The volume of the noise; (2) the intensity of the noise; (3) whether the nature of the noise is usual or unusual; (4) whether the origin of the noise is natural or unnatural; (5) the volume and intensity of the background noise, if any; (6) the proximity of the noise to residential sleeping facilities; (7) the nature and zoning of the area within which the noise emanates; (8) the density of the inhabitation of the area within which the noise emanates; (9) the time of the day or night the noise occurs; (10) the duration of the noise; (11) whether the noise is recurrent, intermittent or constant; and (12) whether the noise is produced by a commercial or noncommercial activity. § 54-147. The bottom line is that all citizens have the right to the peaceful enjoyment of their property. Determining what is "peaceful" is the hard part. All citizens in a suburban society have to put up with some annoying noise now and then, and most understand that and do not complain unless they are faced with what they consider chronic loud, unnecessary, unnatural or unusual disturbances. Officers and dispatchers faced with noise complaints should take guidance from the findings the city council made when enacting The Noise Code: It is found and declared that:

(1) The making and creation of loud, unnecessary or unusual noises within the limits of the city is a condition which has existed for some time and the extent and volume of such noises is increasing;

(2) The making, creation or maintenance of such loud, unnecessary, unnatural or unusual noises which are prolonged, unusual and unnatural in their time, place and use affect and are a detriment to public health, comfort, convenience, safety, welfare and prosperity of the residents of the city; and

(3) The necessity in the public interest for the provisions and prohibitions enacted and contained in this division is declared as a matter of legislative determination, and the public prohibitions enacted and contained in this division are in pursuance of and for the purpose of securing and promoting the public health, comfort, convenience, safety, welfare and prosperity and the peace and quiet of the city and its inhabitants. § 54-146 of the Code of the City of Topeka (1994), as amended.

Officers and dispatchers should do the best they can with the information in their possession. All noise complaints should be investigated, even if the caller refuses to speak with officers. While the chances of catching the offender "red-handed" are much slimmer if the caller refuses, and the city has a much greater chance of convicting the violator if the citizen who is disturbed by noise is willing to get involved, every citizen of this community deserves the prosperity, peace & quiet the city council attempted to secure for them through enactment of The Noise Code.

Please advise if you have any questions.