391 U.S.

216
88 S.Ct. 1472
20 L.Ed.2d 538

Wayne DYKE et al., Petitioners,

v.
TAYLOR IMPLEMENT MFG. CO., Inc.
No. 149.
Argued Jan. 18, 1968.
Decided May 20, 1968.

Michael H. Gottesman, Washington, D.C., for petitioners.

Allen H. Carter, Athens, Tenn., for respondent.
Mr. Justice WHITE delivered the opinion of the Court.

Petitioners, Wayne Dyke, Ed McKinney, and John Blackwell, were found

guilty of criminal contempt by the Chancery Court of McMinn County,
Tennessee. All three were given the maximum sentence authorized by statute,
10 days in jail and a $50 fine.1 The Tennessee Supreme Court affirmed,2
rejecting contentions that the convictions violated the Federal Constitution
because a jury trial was denied3 and because testimony concerning a gun,
allegedly discovered during an unconstitutional search, was admitted at trial.
Petitioners raised both challenges in their petition for a writ of certiorari, and
we granted the writ. 389 U.S. 815, 88 S.Ct. 44, 19 L.Ed.2d 66 (1967).

In connection with a labor dispute, McMinn County Chancery Court issued, on

January 24, 1966, an injunction against, inter alia,

'inflicting harm or damage upon the persons or property of (respondent Taylor

Implement Company's) employees, customers, visitors or any other persons.'

On the night of February 25, 1966, a car was seen to drive past the home of
Lloyd Duckett, a nonstriking Taylor Implement employee who lived in Monroe
County which adjoins McMinn. Shots were fired from the car at or into the

Duckett home. Robert Wayne Ellis, Duckett's son-in-law, was standing in the
front yard with another son-in-law, Dale Harris; Ellis fired back at the car with
a pistol, and thought his first shot hit the back of the car. Ellis informed
Monroe County Sheriff Howard Kirkpatrick by telephone, and soon after,
Monroe Deputy Sheriff Loyd Powers, contacted by Kirkpatrick on his radio
and presumably told of the crime, spotted a suspicious car and began following
it. The car raced away but was stopped by Athens, Tennessee, policemen,
notified by Powers of a speeding car heading for Athens. When Powers reached
the stopped car, which contained the three petitioners, he and the Athens
policemen took them to McMinn County jail,4 and parked their car outside the
jail. While petitioners were waiting inside the jail, Powers and several Athens
policemen searched the car. Under the front seat they found an air rifle. At trial
there was testimony that Ellis and Harris had recognized the car from which
shots were fired as a two-tone 1960 or 1961 Dodge, that Ellis thought he hit the
back of the Dodge with one shot, that the car stopped in Athens was a 1960
Dodge with a fresh bullet hole through the trunk lid, that an air rifle pellet was
found the next day outside the Duckett home, and that an air rifle was found
under the car's seat.5 The chancellor noted that the case against petitioners was
'premised entirely upon circumstantial evidence' but that nonetheless he had 'no
trouble at all with the proof which I have heard and I have weighed it in its
severest form, that the charges made must be proven beyond a reasonable
doubt.' The three petitioners were found guilty.
5

Petitioners' first claim is that the Fourteenth Amendment was violated when
their request for trial by jury was denied. We have held today, in Duncan v.
State of Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491, that the
Fourteenth Amendment imposes upon the States the requirement of Article III
and the Sixth Amendment that jury trials be available to criminal defendants.
We have also held, in Bloom v. State of Illinois, 391 U.S. 194, 88 S.Ct. 1477,
20 L.Ed.2d 522, that prosecutions for criminal contempt are within the
constitutional guarantee. The Bloom and Duncan cases, however, have
reaffirmed the view that the guarantee of jury trial does not extend to petty
crimes. As Bloom makes clear, at 195200, 88 S.Ct., at 14781481, criminal
contempt has always been thought not to be a crime of the sort that requires a
jury trial regardless of the penalty authorized. Alleged criminal contemnors
must be given a jury trial, therefore, unless the legislature has authorized a
maximum penalty within the 'petty offense' limit or, if the legislature has made
no judgment about the maximum penalty that can be imposed, unless the
penalty actually imposed is within that limit. This Court has not had occasion to
state precisely where the line falls between punishments that can be considered
'petty' and those that cannot be. From Cheff v. Schnackenberg, 384 U.S. 373,
86 S.Ct. 1523, 16 L.Ed.2d 629 (1966), it is clear that a six-month sentence is

short enough to be 'petty.' That holding is sufficient for resolution of this case.
Here the maximum penalty which Tennessee statutes permitted the chancellor
to impose was 10 days in jail and a fine of $50. The contempt was therefore a
'petty offense,' and petitioners had no federal constitutional right to a jury trial.
6

Petitioners next contend that admission at trial, over timely objection, of

evidence concerning the discovery of an air rifle under the seat of the car in
which they were riding when arrested violated the Fourth and Fourteenth
Amendments. The State concedes that the search was without a warrant, but
asserts that it was not in violation of the Constitution because 'reasonable.'
While the record is not entirely clear, petitioners appear to have been arrested
for reckless driving. Whether or not a car may constitutionally be searched
'incident' to arrest for a traffic offense, the search here did not take place until
petitioners were in custody inside the courthouse and the car was parked on the
street outside. Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d
777 (1964), holds that under such circumstances a search is 'too remote in time
or place to (be) incidental to the arrest * * *.' 376 U.S., at 368, 84 S.Ct., at 884.

The search in question here is not saved by Cooper v. State of California, 386
U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967), which upheld a warrantless
search of a car impounded 'as evidence' pursuant to a state statute. The police
there were required to seize the car and to keep it until forfeiture proceedings
could be completed. In those circumstances, said the Court, '(i)t would be
unreasonable to hold that the police, having to retain the car in their custody for
such a length of time, had no right, even for their own protection, to search it.'
386 U.S., at 6162, 87 S.Ct., at 791. In the instant case there is no indication
that the police had purported to impound or to hold the car, that they were
authorized by any state law to do so, or that their search of the car was intended
to implement the purposes of such custody. Here the police seem to have
parked the car near the courthouse merely as a convenience to the owner, and
to have been willing for some friend or relative to McKinney (or McKinney
himself if he were soon released from custody) to drive it away. The reasons
that made the warrantless search in Cooper reasonable thus do not apply to the
search here. The Court discussed in Cooper, 386 U.S., at 61, 87 S.Ct., at 790,
the reasons why that case was distinguishable from Preston. The case before us
is like Preston and unlike Cooper according to each of the distinguishing tests
set forth in the Cooper opinion.

Automobile, because of their mobility, may be searched without a warrant upon

facts not justifying a warrantless search of a residence or office. Brinegar v.
United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); Carroll v.
United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). The cases so

holding have, however, always insisted that the officers conducting the search
have 'reasonable or probable cause' to believe that they will find the
instrumentality of a crime or evidence pertaining to a crime before they begin
their warrantless search. The record before us does not contain evidence that
Sheriff Kirkpatrick, Deputy Sheriff Powers, or the officers who assisted in the
search had reasonable or probable cause to believe that evidence would be
found in petitioners' car. Powers had not been told that Harris and Ellis had
identified the car from which shots were fired as a 1960 or 1961 Dodge. He
testified:
9

'All I got is just that it would be an old make model car. Kinda old make model
car.'

10

The record also contains no suggestion that Ellis told Sheriff Kirkpatrick,
Deputy Sheriff Powers, or any other law enforcement official that he had fired
at the Dodge or that he thought he had hit it with one bullet. As far as this
record shows, Powers knew only that the car he chased was 'an old make model
car,' that it speeded up when he chased it, and that it contained a fresh bullet
hole. The evidence placed upon the record is insufficient to justify a conclusion
that McKinney's car was searched with 'reasonable or probable cause' to believe
the search would be fruitful.

11

Since the search was not shown to have been based upon sufficient cause, we
need not reach the question whether Carroll and Brinegar, supra, extend to a
warrantless search, based upon probable cause, of an automobile which, having
been stopped originally on a highway, is parked outside a courthouse.

12

Because evidence was admitted without a satisfactory showing that it was

obtained in compliance with the Fourth and Fourteenth Amendments, the
judgment below is reversed and the case is remanded to the Tennessee
Supreme Court for disposition not inconsistent with this opinion.

13

Reversed and remanded.

14

Mr. Justice HARLAN, whom Mr. Justice STEWART joins, concurring.

15

I concur in the judgment in this case, and in that part of the Court's opinion
dealing with the admission at petitioners' trial of evidence produced by an
unlawful search.

16

Mr. Justice BLACK, with whom Mr. Justice DOUGLAS joins, dissenting.

16

Mr. Justice BLACK, with whom Mr. Justice DOUGLAS joins, dissenting.

17

The Court holds in this case, as it said in dictum in Bloom v. State of Illinois,
391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d 522, that persons charged with socalled 'petty' crimes are not entitled to trial by jury. I am not as sure as the
Court seems to be that this classification should be used to deprive a criminal
defendant of a jury trial. See my dissenting opinion in Green v. United States,
356 U.S. 165, 193219, 78 S.Ct. 632, 648661, 2 L.Ed.2d 672. The word
'petty' has no exact meaning, and until it is given a better definition than that
which the Court gives to it today, I do not desire to condemn the right to trial by
jury to such an uncertain fate. See Cheff v. Schnackenberg, 384 U.S. 373, 384
393, 86 S.Ct. 1523, 15261530, 16 L.Ed.2d 629 (dissenting opinion). My
Brother Harlan's dissent in Duncan v. State of Louisiana, 391 U.S., p. 171, 88
S.Ct., p. 1460, 20 L.Ed.2d 491, points out that whippings, even where 31 lashes
were inflicted, were classified as petty crimes. And the Court here states that
six months' punishment is petty. I am loath to hold whippings or six months'
punishment as 'petty.' And here, where the offense is punishable by a $50 fine
and 10 days in jail behind bars, I feel the same way. Even though there be some
offenses that are 'petty,' I would not hold that this offense falls in that category.
See my dissenting opinion in United States v. Barnett, 376 U.S. 681, 727, 84
S.Ct. 984, 1031, 12 L.Ed.2d 23. Since I would reverse and remand this case for
a trial by jury, I do not find it necessary to consider the other questions decided
by the Court.

TennCode Ann. 23903 (1955): 'The punishment for contempt may be by

fine or imprisonment, or both; but where not otherwise specially provided, the
circuit, chancery, and appellate courts are limited to a fine of fifty dollars
($50.00), and imprisonment not exceeding ten (10) days, and all other courts
are limited to a fine of ten dollars ($10.00).'

Sub nom. Taylor Implement Mfg. Co., Inc. v. United Steelworkers of America,
219 Tenn. 472, 410 S.W.2d 881 (1966), rehearing denied, 219 Tenn. 481, 410
S.W.2d 885 (1967).

This claim by petitioners is based on the Fourteenth Amendment, and

respondent calls our attention to the fact that at trial and on appeal to the
Tennessee Supreme Court petitioners pointed only to specific Bill of Rights
provisions. The opinion below demonstrates that the Tennessee Supreme Court
considered and rejected the contention that the Fourteenth Amendment and the
Sixth Amendment, taken together, required that petitioners be given a jury trial.
We have frequently held that a party is not barred by failure to cite below the
proper constitutional provisions when the lower courts consider the relevant

provisions. E.g., Braniff Airways, Inc. v. Nebraska State Bd. of Equalization

and Assessment, 347 U.S. 590, 598599, 74 S.Ct. 757, 762, 98 L.Ed. 967
(1954); Gibbs v. Burke, 337 U.S. 773, 779, 69 S.Ct. 1247, 1250, 93 L.Ed. 1686
(1949).
4

The record suggests that petitioners were told they were under arrest for
reckless driving.

The air rifle itself was not introduced. The trial judge treated it as 'filed and
withdrawn.'