Dyke v. Taylor Implement Manufacturing Company, Inc.

PETITIONER:Dyke
RESPONDENT:Taylor Implement Manufacturing Company, Inc.
LOCATION:Alamance County

DOCKET NO.: 149
DECIDED BY: Warren Court (1967-1969)
LOWER COURT:

CITATION: 391 US 216 (1968)
ARGUED: Jan 18, 1968
DECIDED: May 20, 1968

Facts of the case

Question

Audio Transcription for Oral Argument – January 18, 1968 in Dyke v. Taylor Implement Manufacturing Company, Inc.

Earl Warren:

Number 149, Wayne Dyke et al, petitioners versus Taylor Implement Manufacturing Company Incorporated.

Mr. Gottesman.

Michael H. Gottesman:

Mr. Chief Justice, may it please the Court.

This case is here on writ of certiorari to the Tennessee’s Supreme Court and it presents two issues.

Each of which has been discussed at some length already this week: First, the right to jury trial in at least certain criminal contempt cases and second, the validity of the search without warrant of an automobile.

The issues arise in this case however in quite a different context and since that context may shape the resolution, I’d like to describe it at least at some length.

We begin here with the strike being under taken by the employees of the respondent company against the company.

Petitioners were striking employees of the company.

At some point during the strike, the company went into the Tennessee Court of Equity.

They are still separate courts in Tennessee and it got an injunction against certain conduct by the striking employees.

The provisions of that injunction relevant here enjoined conduct which quite clearly was conduct already proscribed by the criminal law of the State of Tennessee specifically it enjoined the striking employees from injuring or harming those employees of the company who came to work or visitors or other people who may come to the company during the period of the strike.

Now, of course it’s undisputed and the company acknowledges in its brief that this conduct which was enjoined and indeed for which the petitioners ultimately were tried in contempt is a felony under the state law of Tennessee.

Sometime after the injunction was issued and while the strike was continuing, a shot was fired into the home of one of the employees who was working during the strike.

This home was some 25 miles from the plant in the next county.

The shot was fired from an automobile as the automobile raced away the occupants of the house returned fire and manage to hit the car with one bode in the back.

Deputy Sheriff Powers who is a sheriff in the county where the plant is located and who was at the time the record doesn’t quite clear about 15 or 20 miles from the scene of the shooting, received the report over his radio that a shooting had occurred that car was apparently headed in the direction of his county and that it was an old make model car.

He expressly testified that that is all that he received over his radio in terms of a description of the car and when asked, Did you get a specific description?

He said, No, that’s all I got.

It was an old make model car.

As he was driving along, he saw an old make model car coming in the opposite direction that quite equipped and he turned around and followed it.

He testified that was going some 78-80 miles an hour, he couldn’t catch up to it and so he radio the head to the police in the next town which happens to be the town the plant is located in, to stop the car.

They did so Sheriff Powers is then as they were stopped, caught up, pulled up along side.

Earl Warren:

Did he tell them what kind of a car it was?

Michael H. Gottesman:

I’m sorry.

Did who saw?

Earl Warren:

That the officer who radioed the head, tell what kind of a car it was?

Michael H. Gottesman:

Well, all the record shows Sheriff Powers says he radio the head and said I’m chasing an old car and I can’t catch it please stop it.

That’s all he recites having said.

He did testify that he didn’t know at this time any more about the car except that it was an old car.

To that, I assume is all that he could’ve radio the head.

Michael H. Gottesman:

At any rate, the car was stopped and the car which was stopped we know is petitioner’s car.

Sheriff Powers pulled up alongside.

Petitioners were still sitting in the car.

He came over, there was apparently a brief conversation not recorded.

At the end of which, Sheriff Powers told the occupants of the car petitioners, I’m going to take you down to the jail.

He did not tell them what the ground for taking them was he just said, I’m going to take you down to the jail.

The petitioners came out of their car and apparently we’re taken in Sheriff Powers’ car to the jail.

No search was conducted of the car at this point on the highway, but the car was separately brought to the jail and was parked right outside the front door of the jail.

Sheriff Powers then testifies, I took the defendants petitioners inside the jail and sat them down there.

I told petitioner McKinney who was the driver of the car that he was under arrest for reckless driving and I then went outside and I searched the car.

Now, there is no contention here, I think it’s important to emphasize this at the outset.

There’s no suggestion, this was an administrative search.

There’s no suggestion that there were any regulations in McMinn County Tennessee for searching every car that was impounded.

Indeed, there’s no suggestion in this record that this car was impounded.

All we know is that the car was brought to the jail as in Preston that was the case and as the Court suggested in Preston for all we know it may have been for the convenience of the petitioners.

Following the search of course uncovered a gun and so an ammunition.

Byron R. White:

What the petitioners say about his car?

Michael H. Gottesman:

At that point, he said nothing about his car.

He later said —

Byron R. White:

But he said he’s going to leave it.

Michael H. Gottesman:

The record isn’t clear when he said that because it was a different witness who testified I got there and I heard that —

Byron R. White:

(Voice Overlap) clear that he didn’t say it now.

Michael H. Gottesman:

It isn’t clear whether he said, — well, he said it before the search was conducted or after the search was conducted.

Byron R. White:

But whatever he said, he said he was going to leave his car.

Michael H. Gottesman:

Yes, he said that.

The witness testified that the petitioner McKinney seem very scared and he said I’ll leave my car here tonight.

I’ll leave my car.

And that was the testimony, but it’s not clear on the record whether that was said before or after Sheriff Powers went out and searched the car.

In any rate, Sheriff Powers did testify that all three petitioners were under restraint inside the jail.

Hugo L. Black:

Where was the gun found?

Michael H. Gottesman:

Pardon me.

Hugo L. Black:

Where was —

Michael H. Gottesman:

The gun was found as I understand it under the front right seat.

I gather it was not on the seat but underneath.

It isn’t clear whether it was wedged underneath the seat or simply lying on the floor of the car in the front right side.

Earl Warren:

Could it be seen without taking a seat out of anything?

Michael H. Gottesman:

I don’t think the record shows whether it could or not.

There is no — I’m sorry.

Earl Warren:

I didn’t understand your answer.

Michael H. Gottesman:

I say, I don’t think the record makes that clear, all Sheriff Powers says is, I went out to search the car.

He was purely — this was a — an indiscriminate or at least the complete search of a car that he was under taking.

And he said he found the gun under the front right seat.

I think those were the words and as I say it’s not clear whether that meant physically under it or down on the floor right in front of it.

He also found some ammunition seating.

He said, near where the driver would sit on the front seat.

Earl Warren:

When did he first see the hole in the car?

Michael H. Gottesman:

He saw the hole in the car in the highway.

At the time he saw the hole in the car, he did not know that a shot have been fired at the car involved in the shooting or at least he didn’t testify that he knew that.

But presumably by the time he made the search, he may have been aware that there was in fact a — you know the record is very really unclear but what he know in anything (Voice Overlap) —

Byron R. White:

(Inaudible)

Michael H. Gottesman:

Well, he said that.

Byron R. White:

Yes.

Michael H. Gottesman:

But he also said —

Byron R. White:

(Inaudible)

Michael H. Gottesman:

But he also said that the only information he had is that the car involved in the shooting was an old make model car and that it was coming in his direction.

Byron R. White:

Well, when he saw the hole in front this car —

Michael H. Gottesman:

Well, he made it — (Voice Overlap) okay.

Alright, he may have made that assumption but at the time and I think this is an important fact.

He apparently did not know that the car involved in the shooting have been shot off.

Now, —

Earl Warren:

Well, didn’t he make a search of the car before he saw that hole in it?

Michael H. Gottesman:

No, the search that he made, he made at the jail at that time he had seen the hole in the car.

At that time, he may have known and again the record is unclear.

He may have known what to make a model of the car was at the time he made the search because the record does not reveal when that information was imparted to him.

He did not have that information when he stopped them on the highway.

Hugo L. Black:

Would you mind stating with reference to the time the sequence what happen when he chased the car came on from then on until the — he went back to search it?

Michael H. Gottesman:

From the time?

Hugo L. Black:

How long was it?

Michael H. Gottesman:

We don’t know in minutes how long it was.

It must have been from the record approximately four or five miles to the jail.

It may have been less, I’m not sure.

The record doesn’t say in miles nor does it say in time.

The time sequence apparently is that as soon as he got to the jail.

Hugo L. Black:

To the jail?

Michael H. Gottesman:

To the jail as soon as Sheriff —

Hugo L. Black:

(Voice Overlap) took the man directly to the jail?

Michael H. Gottesman:

He took the man directly to the jail, sat them down inside the jail.

Said to the man, said to petitioner McKinney, you’re under arrest for reckless driving and as he testified then immediately went outside and searched the car.

Hugo L. Black:

You mean immediately?

Michael H. Gottesman:

Immediately or he said he then went outside and searched the car.

Byron R. White:

What kind of a (Inaudible)?

Michael H. Gottesman:

It was an air rifle.

Byron R. White:

A rifle?

Michael H. Gottesman:

Right.

Byron R. White:

That’s pretty hard to see what (Inaudible).

Michael H. Gottesman:

I think that an air rifle can be slipped under the front of most cars.

I don’t know that it can’t.

Byron R. White:

Is it a (Inaudible)?

Michael H. Gottesman:

I think it was, I think there some reference to his being a Sedan but I’m not sure.

At any rate, Sheriff Powers was quite candid about this.

Michael H. Gottesman:

He went out to search that car.

He didn’t go out there and roll up the windows and happen to see a gun seating on the seat.

And I think it’s very —

Hugo L. Black:

(Voice Overlap) one of those air rifles are just minor does it shoot to kill or hurt?

Michael H. Gottesman:

I assume it shoots at least to hurt.

I gather it is a less destructive weapon than a normal rifle and shoots a less powerful bullet.

Hugo L. Black:

Of what?

Michael H. Gottesman:

It shoots a less powerful and a less damaging bullet but I — there is no suggestion by the petitioners that assuming they were the ones who did it that this was not a serious offense that they would have committed.

Byron R. White:

(Inaudible)

Michael H. Gottesman:

Right.

Now, following the discovery of the gun and the ammunition contempt proceedings were bought in the equity court of McMinn County, Tennessee by the company.

In Tennessee unlike the Illinois case you had yesterday, the state does not prosecute criminal contempt the party who got the injunction does in this case the company.

So, the company brought a contempt proceeding and they had a contempt citation which were cited that these people have gun and shot into a house and that because they had gun and shot into a house, they should be found guilty of contempt.

A trial was had —

Potter Stewart:

It wasn’t the point that, was it?

It was because they disobeyed the court order, they should be found guilty.

Michael H. Gottesman:

Well, they disobeyed the court order which said don’t hurt people or threaten to harm people by shooting into a house.

The citation was quite explicit to these people have shot into a house and that is the way in which they disobeyed the Court order.

Now, at the trial, petitioners asked for a jury trial.

It was denied, the gun and the ammunition were introduced into evidence over the objections of the petitioners.

The reason given by the chancellor for allowing the evidence in was that you might be in good shape in criminal court but this is not a criminal court.

In his summation, the prosecutor that is the company counsel relied very heavily on the gun and the ammunition in support of the proposition that these petitioners were indeed the people who done the shooting.

The chancellor found that they were found that they were in contempt of this injunction and gave them the maximum sentence permissible under Tennessee law for violation — for one violation of an injunction which is 10 days in jail and a $50.00 fine.

Byron R. White:

That’s absolute level of penalty.

Michael H. Gottesman:

The absolute — that’s correct, for a single act of contempt which this clearly was.

Byron R. White:

So this is a (Inaudible).

Michael H. Gottesman:

Well, I don’t know, what you can conclude from the fact that they make that the maximum penalty.

This Court has said that there are serious offenses which because they’re serious, I’m talking now on the criminal context not criminal contempt.

Even though the maximum penalty was 30 days, this was a serious offense within the meaning of the Sixth Amendment and that was District of Columbia versus Cohen.

Now, whether Tennessee thought this to be or not to be a serious offense, I would want to characterize that but they have a maximum penalty of 10 days and a $50.00 fine for each single act of contempt.

Your argument would be somewhat stronger if it were two years?

Michael H. Gottesman:

It would be stronger if we’re two years but we submit that it would be nonetheless should reach the same result because under assuming there’s a Sixth Amendment application to criminal contempt proceedings at all, the standard which the Sixth Amendment employs for determining what is a serious offense warning a jury trial is not primarily the severity of the potential sentence if one looks at the decisions of this Court the primary emphasis is on the nature of the offense.

This is repeatedly emphasized in Cohen, in Cox and in Cohen versus Wilson which was the first to these cases.

The Court said, where the nature of the offenses such that a common law it was indictable and that it is malum in se then regardless of the maximum penalty you’re entitled to a jury trial under the Sixth Amendment.

Byron R. White:

You mean, you wouldn’t be making the same argument here if Congress constituted attempt here with a misdemeanor under Tennessee law?

Michael H. Gottesman:

Well, when you say there’s a misdemeanor under Tennessee well, we would —

Byron R. White:

I’m not sure there are misdemeanors under Tennessee law.

In any event whether it’s indictable or it’s considered in any offense, the actual powers you should engage in a man who’s a criminal but that’s a minor.

Michael H. Gottesman:

If these were the type of crime which are prosecuted criminally would not entitle you to a jury trial under the Sixth Amendment and we would concede that you’re not entitled to a jury trial in a criminal contempt proceeding either.

What we are saying is that this is not the type of crime which a prosecuted as a crime would not under the Sixth Amendment entitle you to a jury trial.

Indeed, because it is malum in se indictable at common law under the holding of this Court regardless of the length of the potential sentence.

It is a crime for which you are entitled to a jury trial.

Abe Fortas:

Well, what do you do about Cheff?

Michael H. Gottesman:

Well, Cheff raises another point and it really comes from and there’s a lot of citation of District of Columbia versus Cohen.

In Cohen, which was also a criminal case, this Court said even where we have an offense which is not by nature indictable at the common law or malum in se, in other words, which is not a serious offense by its nature.

We are willing to take a look as an alternative basis for importing the right to a jury trial in the Sixth Amendment to the potential sentence.

In other words, the severity of the sentence which the legislature has announced, it’s willing to impose for this may persuade us that something is indeed a serious offense even if by nature it was not a serious offense at the common law.

And since the maximum punishment there was 90 days, they said we’re convinced, that’s not enough to convert a non-serious offense into a serious one.

We might look differently upon six month.

Now, that led I think to Cheff which relies on District of Columbia versus Cohen and suggests that where the punishment is six months the severity of such that at the very least in the supervisory power of this Court.

This Court is going to say there should be a jury trial.

We submit that that holding really ought to be constitutionally derived.

We don’t submit that Cheff in fact is constitutionally derived.

Abe Fortas:

Well, here you have a contempt, was that indictable at the common law?

Michael H. Gottesman:

No.

I suppose a contempt as such and this was the theory of (Voice Overlap) —

Abe Fortas:

Well, are you saying then we have to go beyond the offense for which the petitioner was convicted and looked to the act itself and because the act itself involves shooting —

Michael H. Gottesman:

That’s correct.

Abe Fortas:

— and that was indictable —

Michael H. Gottesman:

I’m not sure that the nature you know, I don’t think this kind of a distinction has a recent or any prior case in this Court.

Abe Fortas:

No.

Michael H. Gottesman:

I don’t think this Court has ever had to face the fact, for example if someone called murder disorderly conduct — disorderly conduct were defined as shooting a bullet to another person and killing him.

Abe Fortas:

That’s not quite for — for me.

It is with regardless when that is said here the conviction was for contempt not for the shooting.

Michael H. Gottesman:

That’s right.

Abe Fortas:

Well, what is the penalty for shoot — for this kind of shooting on the Tennessee law —

Michael H. Gottesman:

I think the maximum is five years, if I’m correct.

The shooting into an occupied house and not hitting someone —

Abe Fortas:

And then the Tennessee law of person who would be — he’d be indicted for that offense and he’d be entitled to jury?

Michael H. Gottesman:

That’s correct.

Abe Fortas:

And the Tennessee law he’s entitled to 12-men jury?

Michael H. Gottesman:

That’s correct.

Abe Fortas:

And requires the unanimous verdict?

Michael H. Gottesman:

That’s correct.

Abe Fortas:

But what you’re saying here is that we ought to disregard the fact that this is a contempt that carries a quite a different much less severe penalty and look back to the nature of the Act itself?

Michael H. Gottesman:

That’s what we’re submitting, yes.

And primarily for this reason, I think this case is different from Bloom because of the issuance of the injunction.

The problem we face here is that and I might say these are quite common in labor disputes.

I think in every labor dispute whenever there’s any minor violence, it’s quite customary to get an injunction against violence.

Well, the nature of that injunction and that is also inconsistent with the old common law rule that equity does not enjoin any crime.

There, has developed this major exception in labor disputes.

Every time an injunction of that nature issues and it’s an injunction saying do not commit a crime and quite term is that.

I mean the act — the conduct is already criminal.

All that’s accomplished by getting an injunction against it is to provide a second way to prosecute the same conduct.

It’s true the penalty is less.

It’s also true that at least under Tennessee law, there’s no double jeopardy.

That may not be correct under federal constitutional law but these defendants in fact even after they were convicted of contempt had an information issued against them for the crime.

They were indicted but information was issued.

It was ultimately nolle prosequi.

Byron R. White:

This one would be clear whether they have a jury or not.

Michael H. Gottesman:

That’s correct.

But what I’m suggesting is that when an injunction enjoins a crime that unless this Court says that if the crime what entitles you to a jury trial the violation of the injunction entitles you to a jury trial.

We’re going to have an anomalous situation where in effect simply by a judge showing you an injunction your right to jury trial goes out the window.

Byron R. White:

Well, why?

Michael H. Gottesman:

Because you can be prosecuted for the crime —

Byron R. White:

(Voice Overlap) the jury trial with respect to intent that your right to jury trial will indict you doesn’t it?

Michael H. Gottesman:

Well, that is right.

But —

Byron R. White:

And I wouldn’t — did you suggest that in an indictment for shooting this rifle — this house that the previous adjudication would be anyway admissible?

Michael H. Gottesman:

I assume not.

Byron R. White:

(Voice Overlap) would it?

Michael H. Gottesman:

That’s right.

Byron R. White:

And it would not to taint for a moment the procedures of that criminal crime?

Michael H. Gottesman:

That’s correct.

And the only thing that has happened is that in mean time the defendants have gone to jail already for having committed the act and they have not had a jury trial.

Byron R. White:

Well, committing a contempt?

Michael H. Gottesman:

Well, for committing a contempt which constituted committing a criminal act.

Thurgood Marshall:

Well, suppose they have given you a jury trial in five years, you could only get 10 for contempt, 10 days?

Michael H. Gottesman:

That’s correct.

Thurgood Marshall:

And you say that you could have a jury to hear the case that ends up in a 10-day sentence?

Michael H. Gottesman:

That’s correct.

Actually, under Tennessee law —

Byron R. White:

You would just admit you got a jury trial and get a sentence in five years?

Michael H. Gottesman:

No.

In Tennessee he’s empowered to do that.

It happens to have a statute that says the maximum penalty is 10 days.

I’d like to say just one more thing about this and then get into search and seizure which we regard as an equally important issue.

Earl Warren:

But I’d like to ask you one thing about this injunction.

He didn’t necessarily enjoin commission of crime, did it?

Michael H. Gottesman:

Well, the section which the company relied upon to prosecute the contempt was Section C, which appears on page 2.

Earl Warren:

Yes.

Michael H. Gottesman:

And which enjoined the employees from inflicting harm or damage upon the person’s property of complainants-employees.

Earl Warren:

Yes.

Well, now it might be and it might inflict damage in many ways wouldn’t be a prime — they might be entitled to damages but it wouldn’t unless early encompass —

Michael H. Gottesman:

Oh, I’m not suggesting that all that enjoined was crime.

What I’m suggesting is that among what it enjoined was crimes and that was these particular petitioners did happens to be one of the things that are crimes that are enjoined.

Earl Warren:

I see.

Michael H. Gottesman:

I would agree that that you have completely different question to the extent somebody violated a provision of this injunction which was not criminal.

And it would —

Byron R. White:

He would invite the jury.

Michael H. Gottesman:

I think that’s right.

Byron R. White:

Under that, he probably under the statute.

Michael H. Gottesman:

Well, I think I assume if you can make the Sixth Amendment case out of — well, you might, you might not.

I’m not sure.

Byron R. White:

How long is the statute permitted the penalty two years — three years?

Michael H. Gottesman:

Yes, then you have to go right to the severity of the sentence because by its nature obviously this would not be something the sixth — that’s right, the Sixth Amendment would apply to.

I’d like to move if I may to the search and seizure point.

We traveled two roads to what we think is an inevitable result on search and seizure namely that this search was unlawful.

One road is to line up Preston and Cooper and to compare the factors relied upon by this Court in each in determining that a search and warrant was reasonable and then the other unreasonable and to show that the facts of this case the search was clearly unreasonable.

The facts are like Preston indeed they’re hard to distinguish from Preston we think.

And let me deal with that first and then get in to our other approach.

In this case, like Preston, the search took place at a later time at another place.

The search was according to respondents and I think they’re probably right.

The search was incident not to the crime for which they were arrested which is reckless driving but the search was a — to be candid I think was in order to find evidence to link these people to the shooting but they had not be arrested for the shooting.

There was no need to conduct the search in order to prevent the defendants from getting access to weapons.

They were under detention inside the jail.

There was clearly time to get a warrant.

This is not an — from what we can see in this record and impounding case.

This is not a Cooper case whereby law, the police are required to impound the car as evidence of the crime.

Certainly, Tennessee does not require the impounding of every car which has been involved in the reckless driving and that is all these petitioners have been arrested for the time of search was conducted.

Michael H. Gottesman:

Cooper relied very heavily we think set it on the proposition that the search was for evidence of the crime for which the defendants were arrested and that the police were required to impound the car in connection with the offense for which they were arrested and so none of those things are present here and we think this case therefore is Preston.

Assuming the governing standard for these types of cases is to line up and continue to lineup Preston and Cooper.

We think incidentally that Cooper —

Byron R. White:

Do you deny that the Tennessee law was improper?

That each of the appellant’s car (Inaudible)?

Michael H. Gottesman:

Well, I don’t want to deny it.

I just said they didn’t do it.

I don’t think Tennessee law provides for the impounding of cars involved in reckless driving and I don’t think this car was in fact impounded.

At least there is no evidence in the record to suggest that it was.

It was brought along with the petitioner.

Byron R. White:

The reckless driving of car as I gather is the criminal offense?

Michael H. Gottesman:

Yes indeed.

Byron R. White:

And that’s bailable.

Michael H. Gottesman:

I suppose that’s right.

I don’t know that but I assume that it is a bailable offense.

Byron R. White:

(Inaudible)

Michael H. Gottesman:

I assume that’s correct unless, they were going to deny in the court.

Now, we don’t know that they did deny in the court from the record and I’m frank to say that I don’t know whether in fact they denied it to them after he was released.

But at least there is no defense made in this case of the search that this was an impounded car and we think that clearly makes Cooper inapplicable.

Our other approach to this which we really think is the right approach to the Fourth Amendment though we confess this Court has sometimes seem denied evidence, sometime not is that searches without warrant are only reasonable or to put it in a words of Katz a per se unreasonable unless you have one of the already clearly enunciated, clearly established exceptions and we think the proper definition of all of those exceptions the proper way to characterize all of them, is the way they were characterized in the McDonald case and they have sometimes but not always been characterized since that the police may search without a warrant only where the exigencies of the situation preclude the delay necessary to obtain a warrant.

We think that clearly effectuates the purposes of the Fourth Amendment.

The purpose, one of the central purposes is to insist that police officers get warrants before they search.

The reason we insist upon that is to interpose a neutral magistrate who makes subjective decisions about whether there’s enough evidence to search.

The exception is necessary because there are obviously circumstances where it is not convenient or possible to get a warrant before the search has to be conducted.

There are —

Potter Stewart:

And a moving automobile is one of those (Voice Overlap) —

Michael H. Gottesman:

And moving automobile is clearly one of those.

An automobile at rest is clearly not as Preston suggested.

Potter Stewart:

Well, permanently at rest.

Michael H. Gottesman:

I’m sorry.

Potter Stewart:

That one that has the potential that began moving in the next few seconds is —

Michael H. Gottesman:

Well, that’s right although the answer to that I think is as this Court has often suggested all the police need have done was guard the car for the short period of time necessary to get the warrant.

Now, if they had released petitioner McMillan and he had headed for his car and said, Bye, I’m going to take my car home now.

At that point, I would say they no longer had to get the warrant because now their car was threatened.

Now, they would’ve lost because at that point the exigencies of the situation were such assuming they have probable cause to search.

Byron R. White:

Well that’s not the point.

That’s the point if you challenge a probable cause?

Michael H. Gottesman:

That has not been a fundamental aspect to this case.

We are challenging absence of warrant.

Byron R. White:

Do you concede that?

Michael H. Gottesman:

We don’t concede it.

It is not been the major emphasis of our case.

Byron R. White:

(Voice Overlap) we decide this case on the basis that there was no —

Michael H. Gottesman:

The problem with the record is, it isn’t clear whether there was probable cause or not.

It isn’t clear what they knew at the time they conducted that search if they knew the car that involved in the robbery it had a bullet shot in the back and that it was a 1950 Dodge and they knew it was —

Byron R. White:

That is an issue up here, the probable cause —

Michael H. Gottesman:

I would say that it has not been made an issue in this case.

The principle issue in this case has been whether this search was proper, given that it was made without warrant.

And our principle argument is that any search without a warrant is per se improper unless the exigencies of the situation were such that it was not possible to obtain one.

We submit and I want to close with this that not only is the correct interpretation of the Fourth Amendment but it is the only interpretation that is going to make law enforcement in this area sensible.

As long as there are epicycles of rules of reasonableness which depend on the facts of each case which has Mr. Justice Black said earlier today require a question of judgment in each case.

Police are going to make mistakes and when they make mistakes they can be good faith mistakes.

A guilty man is going to go free because that evidence is going to be excluded.

The exclusionary rule is a rule of punishment and yet if the rules remain so fuzzy that a policeman doesn’t know what his obligations are, he is going to be punished.

The guilty man is going to go free because he didn’t understand the rules.

The McDonald rule, the rule that you must get a warrant unless the circumstances are such that there isn’t time to get it is a rule that a policeman can understand and that it incorporates what are now six different rules and that all seem to stem from though they go a little further.

It incorporates them into one rule.

A policeman doesn’t have to have a form book of the latest exceptions.

He doesn’t have to know the Cooper versus California was decided last year and that maybe another exception.

Only he needs to know is that my guiding star, the issue for me to decide is do I have time the circumstances of this case to get a warrant if the answer is yes, I must get it, if the answer is no, then I may search without it assuming I have probable cause.

Michael H. Gottesman:

And that, we submit is the standard which should be adopted under the Fourth Amendment though as we say even if Preston and Cooper remain where they are and the rule is still reasonableness and all the facts and circumstances in this case we submit the search was unreasonable.

I’d like to —

Abe Fortas:

Suppose the police had examined the automobile just when they stopped it for wreck and circumstance you described?

Michael H. Gottesman:

I think it’s clear that under the law, the exception of incidents to an arrest.

As Mr. Justice Frankfurter explained to his dissent for Raboniwitz and we agree with to that extent we’re urging that it be pushed to that extent.

The police when — assuming they have probable cause to make an arrest and make an arrest which they did not do here but they made an arrest but it was one for reckless driving.

Assuming they make an arrest —

Abe Fortas:

Suppose they made the arrest for — stop the car and make the arrest for reckless driving they then examined the car and (Voice Overlap) —

Michael H. Gottesman:

I would say —

Abe Fortas:

— pull off the gun?

Michael H. Gottesman:

Under a Rabinowitz, they could search the occupants of the car for fear that a weapon would be pulled and they could search so much of the car as the occupants could reach in order to prevent destruction of evidence.

They could not search the trunk.

Abe Fortas:

Well, on here they found — the occupant could reach this.

It’s right under the front seat.

Your complaint here is solely that the car come to arrest in front of the police station.

Michael H. Gottesman:

Well, if they have searched it on the highway, they would not have probable cause to make an arrest at that time.

I think that’s a clear —

Abe Fortas:

Why not for reckless driving?

Michael H. Gottesman:

Well, but — alright, but they didn’t search it there and this is the same thing that happened in (Voice Overlap) —

Abe Fortas:

Well, suppose — I’m sorry, I want to be sure I got your answer not that I want to pressure but the police stopped the car, they make an arrest for reckless driving, they searched the car then pulled up the gun.

Michael H. Gottesman:

Right.

Abe Fortas:

And they used that gun in evidence or is that a violation — have they violated the Fourth Amendment?

Michael H. Gottesman:

I would have great difficulty with that case under either theory either the one we espouse or the Preston-Cooper theory.

Assuming they have probable cause to make the arrest, assuming that reckless driving is the kind of crime for which you can make search as incident to an arrest and I’m not sure that’s clear.Reckless driving here was speeding.

Does the policeman have a reasonable basis the fear that if he stopped a speeder a gun will be pulled?

Assuming it’s the kind of crime for which you can make that search then yes if they found the gun pursuant to that search it would under either theory be admissible evidence.

We submit however that that’s not what happened here.

Abe Fortas:

I understand that.

Michael H. Gottesman:

And therefore underneath the theory which —

Abe Fortas:

I understand that but I think that if they suspected that they heard this an old car they suspected this might possible be the car that would not be cause for them to arrest the people for the previous crime but if they stopped them and arrested them for reckless driving, it wouldn’t be unreasonable for them to concern themselves as to whether there might be a gun around which might be used against them.

Michael H. Gottesman:

Well, I have a little trouble when you put in those terms because then you’re saying they can search on suspicion, they can use reckless driving.

Suppose they weren’t driving 70 miles an hour, suppose they were driving within the speed limit, should that deny the police search which Your Honor is suggesting they otherwise could make?

Abe Fortas:

Well, perhaps that’s quite a different case and when I put the —

Michael H. Gottesman:

It might be different.

I would be worried — if the policeman candidly said, I wasn’t interested in searching pursuant to an arrest for reckless driving.

I use this as an excuse to search for evidence to verify my suspicion that they were involved in the shooting.

I would think that there would be serious problems under the Fourth Amendment were he to say that that was his motive.

Hugo L. Black:

May I ask you when this case started?

Michael H. Gottesman:

Early 1960’s.

Byron R. White:

Why?

Hugo L. Black:

1960’s

Byron R. White:

No.

1965 or 1966.

It was decided in the Supreme Court of — yes, it started in February of 1966.

The shooting took place in February of 1966, the contempt trial was March of 1966.

Hugo L. Black:

That’s the first part of the trial that it occurred.

Michael H. Gottesman:

That’s correct.

Hugo L. Black:

That’s part of 1966?

Michael H. Gottesman:

Right.

This — the whole thing took place before Cooper was decided and Cooper was not relied upon even by the Tennessee Supreme Court because they didn’t know that it existed and did not —

Hugo L. Black:

Well, I was asking you for another reason.

Potter Stewart:

Did there — do they — what happens to these people, does the labor dispute over and they —

Michael H. Gottesman:

Labor dispute is over and all of the consequences of the labor dispute are over including this — the information against these people having been nolle prosequi.

The only thing that lingers from that dispute is this pending contempt proceeding in the potentiality of the (Voice Overlap) —

Potter Stewart:

(Voice Overlap) and that’s not a pending contempt proceeding.

Michael H. Gottesman:

I mean — well, I mean the pending possibility of getting their 10-day jail sentence (Voice Overlap) —

Potter Stewart:

(Voice Overlap) they haven’t served any part of that.

Michael H. Gottesman:

They have not served.

Earl Warren:

Mr. Carter.

Allen H. Carter:

Mr. Chief Justice and members of the Court and may it please the Court.

Allen H. Carter:

It’s the position of the Taylor Manufacturing Company the respondent in this case that Mr. Loyd Powers did have probable cause to search the automobile which was at the McMinn County Jail immediately after the apprehension of these defendants.

Now, I might state that in addition to the evidence which Mr. Gottesman sets forth and to the statement of the case that the sheriff of Monroe County in whose county the shooting took place put a description of the automobile out or over his radio and our Sheriff Kirkpatrick testified that the automobile which he later saw in the adjoining county, McMinn County matched the description of the automobile that he put out over the radio.

Byron R. White:

Yes, but the only description was that this was an old model car.

Allen H. Carter:

This is the only description which our Sheriff Powers says that he received at the — or at the time that —

Byron R. White:

(Inaudible)

Allen H. Carter:

Well, that’s what Sheriff Powers —

Byron R. White:

(Inaudible)

Allen H. Carter:

Certainly, the record is not clear as to what Sheriff Kirkpatrick said that he put out.

This is what Sheriff Powers said that he received, yes sir.

And the questions which certainly are involved in the case are the question of the search of the automobile, the question of the jury trial in the criminal contempt proceeding and also the question we say as to whether or not the jury trial or the federal questions, the Sixth Amendment, the Fourteenth Amendment of the Constitution was properly brought to the attention of the Tennessee Supreme Court in the original appeal.

Now, in regard to the question whether or not the search was reasonable under the circumstances as the Court had held in Rabinowitz and other cases, the facts and circumstances of each case determined what is reasonable.

In this case, the petitioners relied primarily on the Preston case and then involved in the vagrancy charged where three men were sitting in their automobile and they were for long period of time and they were arrested charged with — I mean, with vagrancy.

No crime they had been committed as such in Preston.

We say that this case and the present case is — are distinguishable from the Preston case in that in this case a shooting had occurred and in a —

Hugo L. Black:

Any evidence in the record that the officers knew that when he searched the car?

Allen H. Carter:

That the shooting episode had occurred in this joining county, yes sir.

There is evidence in the record.

Hugo L. Black:

But they didn’t arrest them for that, they arrested them for reckless driving?

Allen H. Carter:

Yes, that’s right.

Hugo L. Black:

Do you think it has any effect?

Are they bound and restricted to the reckless driving charge in considering whether there was probable cause?

Allen H. Carter:

Well, Your Honor, in answer to that question if I might answer it in this way at the time they were stopped on the highway for reckless driving there was a conversation which took place at that time in involving the defendants and our Sheriff Powers.

Hugo L. Black:

Regarding what?

Allen H. Carter:

Regarding to bullet hole which was found in the rear of this automobile.

Now, the bullet hole which was found in the rear of this automobile was there for everyone to see.

The — and in response to the question by Sheriff Powers as to why are or where did the bullet hole come from while the defendants are the petitioners in this case made a comment that that hole had been there for a long time.

Thurgood Marshall:

When was this conversation, when he first stopped them?

Allen H. Carter:

Yes sir.

Your Honor, this was the exactly when — the conversation took place was when that first stop them on the highway at this road block.

Thurgood Marshall:

Could you point that out Is it — where is it?

Thurgood Marshall:

In brief right here?

Allen H. Carter:

It’s in the brief yes Your Honor and it’s also in the record.

It’s in the record.

Thurgood Marshall:

Number two, how do you arrest three people for reckless driving on one car?

Allen H. Carter:

Your Honor, I’m not so sure that you can arrest three people for reckless driving but what I’m saying is in this case that —

Thurgood Marshall:

Well, they were arrested for reckless driving, weren’t they?

Allen H. Carter:

No sir.

Mr. McKinney was the only gentleman who was arrested for reckless driving.

Thurgood Marshall:

Well, another two just going along as aids or —

Allen H. Carter:

No sir, they were being in held —

Thurgood Marshall:

For what?

Allen H. Carter:

Actually, they were being detained on no charge immediately after this arrest for —

Thurgood Marshall:

Or just being detained?

Allen H. Carter:

Yes sir.

I think it’s safe to say that they were certainly just being detained pending further investigation of the shooting episode which was in adjoining county.

Thurgood Marshall:

But the only charge to that stage is reckless driving on one and no charge on the other two.

Allen H. Carter:

That’s right.

Thurgood Marshall:

And there’s a probable cause to search the car?

Allen H. Carter:

Well, the person who was charged with reckless driving once the owner of the automobile whose car was searched.

Byron R. White:

Mr. Carter.

Allen H. Carter:

Yes sir.

Byron R. White:

Mr. Gottesman seems to indicate that that the issue of probable cause to search this car in connection with the shooting is not an issue here that apparently maybe he didn’t mean to say this but apparently we are to decide this case on the assumption that there is probable cause to search the car next to the shooting and if that so, would you argue that the — therefore, necessarily probable cause to arrest this man.

(Inaudible)

Allen H. Carter:

That was necessary to arrest these men for the shooting before the search.

Well, if I understand the question correctly, I think that in this case that the automobile which was being searched was being held as evidence in this shooting which was in this adjoining county.

This is the reason that we say that the officers had the right to the custody of this car because it was the instrumentality with which these gentlemen went to this adjoining county.

It was the way that they fled from the scene.

It contained a bullet hole in the rear of the automobile and it was the way in which they return.

There’s a certainly this would give rise to an officer who had information concerning the shooting episode in this adjoining county.

I think that this would give — I mean rise to probable cause for him to believe that these defendants were involved in that shooting episode.

Byron R. White:

Well, do you claim that this — wouldn’t you say that the validity of this search necessarily address on at least thought they’re being probable cause to make that actual shooting?

Allen H. Carter:

Yes sir.

Byron R. White:

And without probable cause, you can make the search in connection to shooting that search was invalid?

Allen H. Carter:

Yes sir.

Byron R. White:

You’re not resting on the any sort of approach that the state can in Harris, just before this Court.

Allen H. Carter:

Well, Your Honor we are to say that the Harris case of —

Byron R. White:

(Voice Overlap) have the right to custody of this car to impound it and — and whether it was the sheriff or may it be somebody else who want to search this car is to inventory.

Allen H. Carter:

Well, Your Honor, in the Harris case and also in the Cooper case, I have difficulty in saying where those statutes authorizing these searches merely — I mean, merely because the statutes provides it, they can be impounded has anything to do with the Fourth Amendment guarantees of the search.

This, to me would seem to be that state’s statute in conflict with the federal constitution would prevail but certainly it’s not true and I have difficulty seeing how this makes any difference even in the Harris case or the Cooper case.

Thurgood Marshall:

Mr. Carter, why don’t you get a search warrant?

Allen H. Carter:

We are —

Thurgood Marshall:

Is there any explanation at the record that why they didn’t?

Allen H. Carter:

No sir.

There is no explanation —

Thurgood Marshall:

Do you have any?

Allen H. Carter:

No sir.

I can’t at the time this was done, it was late at night for that matter.

I can well explain why that there is no search warrant gotten because in other cases there shows that the magistrates were closed by so to speak and things like that in this case, there is — I mean there’s nothing —

Thurgood Marshall:

How far was the magistrate away in this town?

Allen H. Carter:

He was —

Thurgood Marshall:

How large is the town?

Allen H. Carter:

It’s very small, 14,000 people.

Thurgood Marshall:

Well, he wasn’t too far away from —

Allen H. Carter:

No sir, he wouldn’t be too far away of it.

I mean, the record but it’s a mile half away.

Thurgood Marshall:

(Inaudible)

Allen H. Carter:

And some 12 o’clock at night.

Hugo L. Black:

What time of night was it?

Allen H. Carter:

It was midnight or rather around that time.

The shooting occurred approximately 11 o’clock.

Allen H. Carter:

They were stopped at approximately 11:30 some miles from the place where the shooting took place and immediately take him to the jail and thereafter the car was immediately searched —

Potter Stewart:

Now, they saw a bullet hole in this — in the back of this car?

Allen H. Carter:

Yes sir.

Potter Stewart:

In the earlier shooting had there been exchange of shots?

Allen H. Carter:

Yes sir.

Potter Stewart:

Just one shot fired into this?

Allen H. Carter:

No sir.

There had been an exchange.

There was only one shot that hit the automobile as it as leaving there and the Sheriff in Monroe County, the adjoining county where the shooting took place was aware of the shooting episode and he put it out over the radio that shooting episode had taken place.

Potter Stewart:

But not — where those his words, this shooting episode took place?

It doesn’t sound like there are many sheriffs in Tennessee?

Allen H. Carter:

Well, I don’t know how you would —

Potter Stewart:

Does the record show what he did say, in other words, I’m interested in the bullet hole?

Allen H. Carter:

Yes sir.

The record shows by Sheriff Kirkpatrick what was put out of the broadcast — I mean concerning the shooting episode —

Potter Stewart:

That was a kind of old car.

I —

Allen H. Carter:

Yes.

Potter Stewart:

–see that in the record but there was there anything about this shooting episode as you call it would being described as an exchange of shots —

Allen H. Carter:

There’s nothing in there to show —

Potter Stewart:

(Voice Overlap) along with a simple a stray shot from somebody in an automobile into a house?

Allen H. Carter:

There is nothing in the record to show that Sheriff Powers knew that there had been an exchange of gun fire but to point that question out, if it please the Court, I think that any officer would be correct in assuming that where there was a shooting episode that there was an exchange of gun fire and as —

Potter Stewart:

First of all, as I understand it, the word episode doesn’t appear in the record.

Secondly, it’s — I don’t think we can in normal expectation about anything you can have a shot fired from moving automobile into a house or you can have an exchange of gun fire and I wonder if there was anything in this record showing that these people knew that there has been an exchange of gun fire.

In short, I’m wondering if the presence of that bullet hole in the back of the car helps the case for probable cause that’s all.

Allen H. Carter:

I certainly think it does.

Potter Stewart:

Well now, why?

Allen H. Carter:

I think the frank that these people when stopped said that it was an old bullet hole which was obviously contrary to the side of it as testified not only by Sheriff Powers but Sheriff Canon to the effect that it was fresh because it had absolutely no rust around it.

I think that this was in conflict with normal senses and so forth to this extent.

All of this evidence in this record stands uncontradicted concerning the fact that as to the opinion that Sheriff Canon had, he said that in his opinion that the shot have been made that very night.

Allen H. Carter:

All these stands uncontradicted and I think that the fact the bullet hole was in the rear of the automobile certainly gave rise to this matter of probable cause.

Not only was he stopped for reckless driving but he was stopped because the officer had reason to believe that this serious offense shooting in this home in this adjoining county had been committed.

Hugo L. Black:

Had been what?

Allen H. Carter:

Committed.

Abe Fortas:

Well, your problem is that seems to me that Supreme Court of Tennessee based its decision on the proposition that the search was made for evidence of the crime for which these people were arrested that’s on page 45 of the joint appendix and that would be the crime of reckless driving.

Allen H. Carter:

Well, Your Honor I think that the opinion further went on to say that under all the fashion and circumstances in the case that it had met the test of whether or not the search was reasonable.

I think the opinion —

Abe Fortas:

Where is that?

Allen H. Carter:

It’s —

Abe Fortas:

Because on page 45 the — I’m looking onto this I am.

The Court says that so long as the State Tennessee there have been reasonable limits.

First, the police may search pursuant to a lawful arrest the person and the property of the person arrested for evidence of the crime for which he is arrested and for weapons which might be utilized for resistance in order to escape.

Now, if that is the — if that’s state correctly states the law applied here and if the correct states the limit of Tennessee law and I just one would have to conclude that the search here has to be justified in terms of the reckless driving arrest.

Allen H. Carter:

Well, further I mean, this went on that the search conducted with then, the reasonable limits and I can’t speak for a Court to certain what they say and I can’t —

Abe Fortas:

Within those reasonable limits but the Court says that (a) it’s got to be reasonable and (b) that it’s got to be for evidence of the crime for which he is arrested and for weapons which might be utilized for assistance or escape.

Allen H. Carter:

Your Honor, when they point out this also that immediately after the Sheriff of the adjoining county arrived in which the shooting took place, these men were taken back to Monroe County where the shooting occurred and at that time they were charge for shooting in to this house and certainly —

Potter Stewart:

That is by criminal information or criminal charge?

Allen H. Carter:

Yes sir.

Potter Stewart:

And that’s the one that subsequently been nolle?

Allen H. Carter:

Yes sir, that was nolle on prosequi.

Now, in regard to the question of whether or not this case required a jury trial in the contempt proceeding has been argued time and again and certainly one of the points to be raised in this case was whether or not the question on the Sixth Amendment and the Fourteenth Amendment was properly brought to your attention on the Supreme Court of Tennessee.

In the petitioner’s brief, they indicate that certainly that this issue is preposterous because throughout the proceedings that they were relying on a jury trial but nowhere in the assignments of error in the Supreme Court of Tennessee was a question of the Sixth Amendment or the Fourteenth Amendment ever raised, the only constitutional amendment, I’ll say this, it was in the propositions of law in the brief which they presented they included it in the propositions of law.

But in the brief which followed it was not mentioned.

The only place which it was mentioned are these amendments were mentioned where in the propositions of law.

Abe Fortas:

Well, the Tennessee Supreme Court passed on it in terms of Article VII.

Allen H. Carter:

Yes sir, that was the — I mean, this was in the assignment of error which was right, I mean raised by the petitioners.

They said that they were relying on the Seventh Amendment and this was specifically raised in the assignment of error but the Sixth Amendment and the Fourteenth Amendment were not raised in the assignment of error.

The only place was in the proposition of law.

Abe Fortas:

Will you forgive me for reverting to our earlier colloquy?

Were these people — was driver of this car of a prosecuted for reckless driving?

Allen H. Carter:

Not.

I can’t answer that.

I don’t know whether he was prosecuted for reckless driving or not.

Abe Fortas:

Thank you.

Allen H. Carter:

(Voice Overlap)

Earl Warren:

Would you be prosecuted for anything, any crime in this contempt where this episode that we’re talking about it?

Allen H. Carter:

Well, I’ll answer this way, if it please the Court.

He was in — I mean these three gentlemen were indicted in Monroe County for this crime and they —

Earl Warren:

Any other copy?

Allen H. Carter:

That’s right.

Earl Warren:

Not where the — not where the shooting took place?

Allen H. Carter:

No.

Where the shooting took place was where they were indicted.

Earl Warren:

I see.

Allen H. Carter:

And immediately after the indictment was presented and so forth they then paid because and the fine — I mean, in the charge was reduced and under Tennessee law when you nolle on the payment of the cost you cannot thereafter have another indictment return it against you and over if you did if we double jeopardy.

Hugo L. Black:

What was the crime reduced to?

Allen H. Carter:

It wasn’t reduced as such which is dismissed on the payment of the cost.

It was dismissed, the indictment was dismissed.

Hugo L. Black:

Some kind of a compromise reason.

Allen H. Carter:

Well, I mean there I can’t speak for the Attorney General even there because I wouldn’t do him nothing that I was at the trial at that time but it was dismissed.

Hugo L. Black:

I see your court said that in connection with this arrest that you may issue a search warrant search pursuant to a lawful arrest yet was for reckless driving, was it?

Allen H. Carter:

Yes sir.

Hugo L. Black:

The person and property of the person arrested evidence of the crime for which he arrested and for weapon which might be utilized for resistance or escape —

Allen H. Carter:

Yes sir.

Hugo L. Black:

— I presume your argument is that the pistol that have been used for resistance of this case, is that right?

Allen H. Carter:

I think that the — I think that anytime when people have weapon so called in their control I mean that’s certainly that they have a right to search for it and ask what the Court held.

Hugo L. Black:

Are you arguing that the fact that there have been this previous shooting whether it was made the basis of an arrest or not would have something to do with the reasonable circumstances in connection with the entire case in determining whether or not there was probable cause?

Allen H. Carter:

Yes sir.

Thurgood Marshall:

Mr. Carter, —

Allen H. Carter:

Yes sir.

Thurgood Marshall:

— at the time the car was searched there was no charge then and against two and reckless driving against third man.

Allen H. Carter:

That’s true.

Thurgood Marshall:

And the all three were in custody in the jail, is that correct?

Allen H. Carter:

Well, Your Honor, they — as such substantially that is correct but I might say that they were not in a cell as such, they were sitting on the bench as you walk through the front door of the jail but they were not —

Thurgood Marshall:

Could they walk out?

Allen H. Carter:

As to the facts as to whether or not they could’ve walked out, I can only assume that two of them could’ve walked out.

They weren’t being prevented from walking out or anything like that.

Thurgood Marshall:

Well, I thought you admitted they were under restraint.

Allen H. Carter:

I say substantially that they were under restraint to the effect pending further in —

Thurgood Marshall:

Well, restraint means restraints.

Do you agree that restraint mean you can’t walk off?

Allen H. Carter:

Yes sir.

Thurgood Marshall:

Well, what danger was a loaded weapon in the car if they could get out to the jail?

Allen H. Carter:

Well, Your Honor I think that would get back to the questions to whether or not the car be held as evidence in the — if in fact the car could —

Thurgood Marshall:

Well, do you agree that he didn’t search the car for their own protection?

Allen H. Carter:

Well, I — the record doesn’t say while he searched the car but I would only be (Voice Overlap) —

Thurgood Marshall:

Well, is there any claim made that the Sheriff’s searching was own protection?

Allen H. Carter:

I don’t think so.

No sir.

Thurgood Marshall:

Thank you.

Allen H. Carter:

I’m saying this that the car was in a public place and that under this — under the circumstances any one of these men’s confederates are associates could’ve gone to the car and remove evidence which was contained in the car concerning the shooting which occurred in Monroe County.

Thurgood Marshall:

Yes, the policeman was stationed there to watch?

Allen H. Carter:

Pardon me?

Thurgood Marshall:

If a sheriff’s deputy or policeman was stationed there to watch the car, could they have done it?

Allen H. Carter:

Then it would be — I mean it would go back as to a question of control if the car was in fact being held as evidence then I think that the officers had the right to search the car if in fact it was still under the control of the defendant McKinney then I think that any of his associates are —

Thurgood Marshall:

Well, let’s talk on control.

Who had the keys to the car?

Allen H. Carter:

As far as the keys — I don’t know who had the keys to the car.

Thurgood Marshall:

Well, you know the defendants didn’t have it because they came in the Sheriff’s car and somebody else brought their car.

Allen H. Carter:

That’s right.

Allen H. Carter:

But I don’t know that the defendants didn’t have keys at that time after they arrived.

Thurgood Marshall:

He was still under restraint.

Allen H. Carter:

Yes sir.

Going further in the — if I might, the matter goes as to whether or not these defendants were entitled to a jury trial in the state court.

For — I mean, for the prosecution as such for contempt criminal contempt it’s — has long been the rule in that state and for many, many years is of course well knows was a law down to which you might call the Barnett case that under the criminal law that all courts have the right to — I mean, punish some merely for violation of the court order or an order of its court.

Now, in the Sheriff case, the federal case why it provided of course that the six months was — I mean was the ruling was of test.

In the case at bar the maximum penalty under Tennessee law was 10 days in jail and a $50.00 fine.

I mean, throughout the arguments presented by the petitioners they indicate that because what they did in the State of Tennessee was a felony that they were entitled to a jury trial but in effect what they were been tried for was the violation of the court order.

Now, there are some comment concerning the reason for the court order and so forth, I might point out that the injunction order which was handed down, which was issued in the case was an agreed order.

It was agreed on by the attorney’s for the petitioners concerning the enjoinment of violence and so forth and this is a common practice in all states I think which have so-called right to work law so where the people who do not choose to strike continue to go to work then they’re protected under the law from any harm that might come to them by people who are on the picket lines or elsewhere for that matter.

Now, in this case it — I mean it goes back to a question as whether or not the Sixth Amendment applies to the states even in the jury trial through the Fourteenth Amendment and certainly it’s our position that had this case a reason in the federal court system with the maximum penalty of 10 days in jail as provide by law and a $50.00 fine that in a federal system that this punishment would be — I might say, this punishment would be proper under the Sheriff’s case.

And to say that it would not be proper in the State of Tennessee where there is in some question is to whether or not the Sixth and the Fourteenth Amendment apply to the jury trial question in state court.

It’s somewhat difficult for me to comprehend in view of the fact that the Sixth and Fourteenth Amendment to the state court concerning jury questions are — I mean is — that is excuse me, questionable.

Now, —

Hugo L. Black:

May I ask you?

Assuming that in one of these cases I don’t say there’s any such thing possible or likely, assuming in one of the cases that’s been argued this week, the Court should reach the conclusion the Fourteenth Amendment made this provision, jury trial provision applicable to the state, what would be your position then?

Allen H. Carter:

Well, I would say that under the Sheriff case where the — it was permitted the six month since it was permitted they tried summarily without a jury.

I would say that that certain apply in this case where the maximum sentence is only 10 days and a $50.00 fine and I think that even if the Court did hold that the Sixth and Fourteenth Amendment were applicable to the states that under Sheriff — I mean you would have the same result here they were not tried for jury trial.

Now, the cases goes back as concerning whether or not this car can be held as evidence and to whether or not the search under that question was — I mean, was justified and it’s the position of the respondent that under all the facts and circumstances of the case this search was reasonable and that the constitutional rights of the defendants were not or the petitioners were not violated by the search nor were they violated by the fact that they were not presented with the jury trial.

Hugo L. Black:

How relevant do you think this pistol was, what’s the point that he declared, I think convicted the man on contempt such what you have it?

Allen H. Carter:

Yes sir.

I —

Hugo L. Black:

It was all put in the contempt proceeding whether they?

Allen H. Carter:

It was not presented to the Court in the contempt case.

Hugo L. Black:

Well, then why is it (Voice Overlap).

Allen H. Carter:

I’ll put it this way, it was not ever seen — I mean, the weapon was never seen by the chancellor of the — I mean the bullets were never seen by the chancellor.

He made a comment that — I mean, to treat as file in withdrawn but I mean in actuality it was never there, he never saw it.

Hugo L. Black:

Was it introduced.

Allen H. Carter:

Well, like I say he said that to treat as filed and withdrawn but it was never seen by the chancellor.

In fact, it was still in Monroe County —

Hugo L. Black:

(Voice Overlap) —

Allen H. Carter:

— the adjoining county.

Hugo L. Black:

It was not introduced in evidence, what does it have to do with this case?

Allen H. Carter:

Well, Your Honor this is — we go back to the question of the Chapman case concerning the harmless error as I understand things of this nature that you have to show that —

Hugo L. Black:

Well, infringement Chapman —

Allen H. Carter:

Well, —

Hugo L. Black:

— it was trying to find out if it was actually play the part in this case.

Allen H. Carter:

I can’t answer as to the fact that it did without being — I mean, without speaking for the chancellor.

He made a comment that he had waived the evidence, all the evidence which he had heard in its severe form and that he found that they guilty the unreasonable doubt.

Hugo L. Black:

Was there any effort motion to suppress it?

Allen H. Carter:

Yes sir.

Hugo L. Black:

And was that passed on?

Allen H. Carter:

Yes sir.

That was passed on.

Hugo L. Black:

Well, why wouldn’t that bring it here?

Allen H. Carter:

You mean — I mean concerning the weapon?

Thurgood Marshall:

Suppress the weapon as evidence, was there a motion made to suppress it?

Allen H. Carter:

Yes sir.

Thurgood Marshall:

If used as evidence?

Allen H. Carter:

Yes sir.

Thurgood Marshall:

And the Court rule on that.

Allen H. Carter:

Yes sir.

They overrule as such concerning that testimony concerning this, the finding of this gun.

That’s right.

They — I mean the testimony was there that these officers had seen it that the ammunition which they found in the front seat of the automobile was comparative, I mean was the same type of ammunition which was found at the home into whose house the bullet was fired.

In other words, the same projectile and it was a different type projectile.

In other words, it was similar to attorney to a lawful projectile and that the sheriff testified that he had never seen anything like it but the one that was found at the home of where the shooting took place and the ones which were found in the front seat of the car were the same.

Hugo L. Black:

But it was there relevant, wasn’t it?

Allen H. Carter:

I think for that question that it was relevant, yes sir.

Thank you very much.

Allen H. Carter:

Thank you.