In connection with a labor dispute, a Tennessee county chancery
court issued an injunction which, inter alia,
inflicting harm or damage to respondent company's employees. About
a month later, a shot was fired from a car at the house of one of
respondent's nonstriking employees. A deputy sheriff, presumably
informed of the crime but without a description of the car or
further details, pursued a suspicious car which raced away but was
ultimately stopped by policemen, who arrested petitioners, the
car's occupants, apparently for reckless driving. The deputy
sheriff arrived, and he and the policemen noted a fresh bullet hole
in the car. They took petitioners to jail, and the policemen parked
the car on the street outside, apparently as a convenience to the
car's owner. The deputy sheriff and several policemen made a
warrantless search of the car and found an air rifle under the
front seat. Over petitioners' objection, evidence about the gun was
admitted at their trial before the chancellor for criminal contempt
for violating the injunction. Petitioners were found guilty and
given the maximum sentence of 10 days in jail and a $50 fine. The
State Supreme Court affirmed, rejecting petitioners' contentions
that the convictions violated their constitutional rights because a
jury trial was denied and because evidence concerning the gun,
which they claimed had been illegally seized, had been
1. In the light of the maximum sentence which the Tennessee
statutes allowed, the criminal contempt for which petitioners were
convicted was a "petty offense," to which the federal
constitutional right of a jury trial does not extend. Pp.
391 U. S.
2. The evidence in the record is insufficient to justify the
conclusion that the officers, before they began their warrantless
search of the car, had "reasonable or probable cause" to believe
that they would find an instrumentality of a crime or evidence
pertaining to a crime. The applicability of Brinegar v. United
States, 338 U. S. 160
(1949), to a warrantless search of a parked automobile upon
probable cause therefore need not be decided, and petitioners'
claim must be sustained that the gun was illegally
Page 391 U. S. 217
seized and evidence concerning it should not have been admitted
at their trial. Pp. 391 U. S.
219 Tenn. 472, 410 S.W.2d 881, reversed and remanded.
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. [Footnote 1
] The Tennessee Supreme Court
affirmed, [Footnote 2
rejecting contentions that the convictions violated the Federal
Constitution because a jury trial was denied [Footnote 3
] and because testimony concerning
Page 391 U. S. 218
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 (1967).
In connection with a labor dispute, McMinn County Chancery Court
issued, on January 24, 1966, an injunction against, inter
"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, [Footnote 4
Page 391 U. S. 219
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. [Footnote 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.
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. Louisiana, ante,
p. 391 U. S. 145
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. Illinois, ante,
p. 391 U. S. 194
that prosecutions for criminal contempt are within the
constitutional guarantee. The Bloom
cases, however, have reaffirmed the view that the guarantee of jury
trial does not extend to petty crimes. As Bloom
at 391 U. S.
-200, 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
Page 391 U. S. 220
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
(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.
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.
(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
376 U. S. 368
The search in question here is not saved by Cooper v.
California, 386 U. S. 58
(1967), which upheld a warrantless search of a car impounded "as
Page 391 U. S. 221
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 386 U. S. 61
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 of 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,
U.S. at 386 U. S. 61
the reasons why that case was distinguishable from
The case before us is like Preston
according to each of the distinguishing
tests set forth in the Cooper
Automobiles, 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
(1949); Carroll v. United States, 267 U.
(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
Page 391 U. S. 222
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:
"All I got is just that it would be an old make model car. Kinda
old make model car."
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
Since the search was not shown to have been based upon
sufficient cause, we need not reach the question whether
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.
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.
Reversed and remanded.
Tenn.Code Ann. § 23-903 (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
Sub nom. Taylor Implement Mfg. Co., Inc. v. United
Steelworkers of America,
219 Tenn. 472, 410 S.W.2d 881 (1966),
219 Tenn. 481, 410 S.W.2d 885
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
347 U. S.
-599 (1954); Gibbs v. Burke, 337 U.
, 337 U. S. 779
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."
MR. JUSTICE HARLAN whom MR. JUSTICE STEWART joins,
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.
Page 391 U. S. 223
MR. JUSTICE BLACK, with whom MR. JUSTICE DOUGLAS joins,
The Court holds in this case, as it said in dictum in Bloom
v. Illinois, ante,
U. S. 194
, that persons charged with so-called "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
dissenting opinion in Green v. United States, 356 U.
, 356 U. S.
-219. 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 U. S. 384
393 (dissenting opinion). My Brother HARLAN's dissent in Duncan
v. Louisiana, ante,
p. 391 U. S. 171
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.
my dissenting opinion in United States v.
Barnett, 376 U. S. 681
376 U. S. 727
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