Henry v. United States

RESPONDENT:United States
LOCATION:District Court for the District Court of Columbia

DECIDED BY: Warren Court (1958-1962)
LOWER COURT: United States Court of Appeals for the Seventh Circuit

CITATION: 361 US 98 (1959)
ARGUED: Oct 20, 1959 / Oct 21, 1959
DECIDED: Nov 23, 1959

Facts of the case


  • Oral Argument – October 21, 1959
  • Audio Transcription for Oral Argument – October 21, 1959 in Henry v. United States

    Audio Transcription for Oral Argument – October 20, 1959 in Henry v. United States

    Earl Warren:

    Number 17, John Patrick Henry, Petitioner, versus United States of America.

    Mr. Calihan.

    Edward J. Calihan, Jr.:

    Mr. Chief Justice, may it please the Court.

    The petitioner, John Patrick Henry in this cause was convicted in the Northern District of Illinois of a violation of Section 659 Title 18 United States Code of the unlawful possession of three cartons of transistor radios of a value of an excess of $100.

    Prior to the trial, a motion to suppress was made.

    The motion was denied.

    The motion was then amended and again denied.

    The plaintiff and his co-defendant, one Albert Pierotti, waved a jury trial.

    They were tied by the District Court, and after the Government’s evidence was concluded, a motion for judgment of acquittal was made and denied.

    The defendants both the petitioner, John Patrick Henry and his co-defendant Albert Pierotti offered no defense.

    They were convicted, both appealed, the Court affirmed and the 2-to-1 decision, a dissent having been written.

    Pierotti is not with this any longer.

    He dropped out of the cause.

    Now, in this case, there are two questions presented, and they were also presented below.

    First one is the Fourth Amendment to the Constitution of the United States does not permit the stopping of an individual riding in a motor vehicle on a public highway detention and questioning of said individual, search of the vehicle in which he is riding as a passenger, physical deprivation of his freedom of movement without such conduct constituting arrest.

    Any effect developed by the officers after the stopping of the motor vehicle not just to file or give validity to the act of stopping.

    The second point is that the evidence is not of sufficient weight as a matter of law to support the conviction of the petitioner where the courts below relied principally upon an improper interpretation of a so-called presumption that unexplained possession of recently stolen goods will authorize a conviction.

    Now, the facts are that on May the 13th of 1957, the petitioner, John Patrick Henry was drinking in a bar called Phil’s Tavern.

    At about 12 o’clock, the — a government witness asked him if he knew where he could get a bet down on a horse.

    It was a bad day, and the government witness loaned the petitioner, John Patrick Henry, his automobile.

    Meantime, the co-defendant who was a duct worker for Zephirine Tracklines had sometime in the foreknown and independently of the petitioner handled some transistor radios which were moving across the duct as a part of an interstate shipment.

    Somehow unbeknownst to anyone, Mr. Pierotti managed to get three cartons of these radios off of the duct.

    Now, this is preliminary.

    I give you the background of each of the activities of the two defendants for a purpose.

    There were two agents, two FBI agents, Federal Bureau of Investigation agents patrolling the area together with three or four other units.

    It appeared that the night before a whiskey loss in the amount of some $50,000 has been incurred.

    Apparently, a truck was stolen from the Hayes Motor Truck service and the agents where in the area seeking leads to the whiskey loss.

    They observed John Patrick Henry, the petitioner, and Pierotti come out of another saloon where apparently the petitioner had gone in his effort to get a bet on a horse.

    They saw him come out of the saloon and saw them get into the Ford automobile which had been loaned to the petitioner.

    Both the petitioner and Pierotti drove south to the end of the block around the corner to the right west, around the next corner to the right north and then proceeded two blocks north to another corner where they turned west.

    Edward J. Calihan, Jr.:

    The agents then observed their first attempt to go into an alley two blocks west of that north street but apparently a mistake had been made and they came back a block and turned into an alley about a block west of the return street.

    The defendants proceeded about 300 feet up into the alley going north and the agents still following them stopped short of the alley and agent Oitszinger or Stadtmiller got out of the vehicle and observed or took a look up the alley.

    They observed Henry who was riding as a passenger get out of the Ford automobile going into a gangway and few minutes later, returned with some cartons.

    Now, the agents admitted that they could not, in any way, identify those cartons or their size, shape or anything.

    The petitioner put the cartons in the vehicle, got back into the automobile and Pierotti drove to the end of the alley and turned out of it heading back in an easterly direction.

    The agents did not proceed through the alley but went further west to another street in an effort to proceed around the block and by the time they had gotten around the block, they missed the two defendants who were in the Ford.

    After looking about, they returned to the vicinity of the Red Top Lounge and they saw the motor vehicle.

    Now, they did not see any movement of cartons from the Ford into the Red Top Lounge.

    After a few minutes, the petitioner John Patrick Henry and Pierotti emerged from the Red Top Lounge, got back into the Ford automobile and made the same trip around the block, back two blocks and over into the alley.

    And again, the agents followed them and again, alighted from their vehicle at the mouth of the alley and observed the defendant or petitioner, Henry, go through the same activity.

    And again, they could not identify the cartons’ size, shape and as a matter of fact, on cross-examination, agent admitted that he didn’t know whether there was a carton of groceries.

    But in any event, after the petitioner, Pierotti, again got back into the Ford automobile and again proceeded out of the alley and headed east, the agents for the second time, attempted to go around the block and again, missed the agents.

    They travelled several streets and finally observed the petitioner, John Patrick Henry, and Pierotti coming down a street in the vicinity and they were approaching from an opposite direction, the agents were, a two-way street.

    Immediately upon seeing the Ford vehicle in which the petitioner was riding still as a passenger, they pulled directly in front of the Ford and with their hands out of the windows motioned head on for the vehicle in which the petitioner was riding, stopped.

    The agents then motioned to both defendants and they got out of the automobile.

    Now, there is only one other factor in this case so far as the agents are concerned.

    The agents said that they knew John Patrick Henry, the petitioner, no more, no less, and that they had been advised that the — that Albert Pierotti was implicated in interstate shipments, no more, no less.

    Potter Stewart:

    (Voice Overlap) —

    Earl Warren:

    You say were — they’re at that —

    Edward J. Calihan, Jr.:

    Implicated by — yes, they said that they received that information from Pierotti’s present employer.

    Pierotti was working for a company which handled interstate shipments.

    I’m sorry.

    Potter Stewart:

    When did — when did the agents testified to this?

    Edward J. Calihan, Jr.:

    The agents testified on the motion — the agent testified to the motion to suppress and there was a stipulation if the other agent would also testify —

    Potter Stewart:

    (Voice Overlap) —

    Edward J. Calihan, Jr.:

    — substances.

    Then on the trial, the other one who testified, and there was a stipulation that — there — there is no substantial dispute in — in the facts here.

    Potter Stewart:

    Both on the motion to suppress and on the trial (Voice Overlap) —

    Edward J. Calihan, Jr.:

    Yes, the same facts were testified.

    Potter Stewart:

    It appeared that these two agents testified — who would testify that they — they were acquainted with and they knew this petitioner, Mr. Henry.

    Edward J. Calihan, Jr.:


    Potter Stewart:

    And that they had heard that his co-defendant was implicated.

    Edward J. Calihan, Jr.:

    Implicated in interstate shipments.

    Potter Stewart:

    They didn’t —

    Edward J. Calihan, Jr.:

    Not on any of — not any crime involving interstate shipment which is a point, of course, that the dissenting judge may not have liked to deal with that later.

    Now —

    Earl Warren:

    Are there any — any efforts made to explore with that information was by the defendants?

    Edward J. Calihan, Jr.:

    No, Your Honor.

    Earl Warren:

    They didn’t go in, did they?

    Edward J. Calihan, Jr.:


    But immediately upon the vehicle being stopped in his head on manner, the petitioner, Henry, get out of his side and — and the defendant Albert Pierotti got on his side and Henry said, “Hold it, it’s the gee.”

    Now, the agents got out of the vehicle, walked over and looked into the Ford and saw the cartons in question.

    After some conversation with Pierotti and the — and the petitioner, one of the agents says, “There’s something wrong here.

    Let’s go down to the office.” About three hours later, they had determined that the — the radios were stolen and as the agent then stand on this record, we formally placed them under arrest.

    Now, if it please the Court, the substantial —

    Potter Stewart:

    Is there any testimony as to the exact word used when they asked them to come down to the office?

    Edward J. Calihan, Jr.:

    There’s — yes, “There — there’s something wrong here, let’s go down to the office.”

    Potter Stewart:

    One of the agents said.

    Edward J. Calihan, Jr.:

    Yes, that’s on the record.

    Potter Stewart:

    Is there any testimony as to anything that either this petitioner or his co-defendant said as to going down to the office?

    Edward J. Calihan, Jr.:


    No, Your Honor.

    They knew that this were FBI agents.

    And I think that in — in keeping with what the Court has said in (Inaudible), I don’t think they had to risk being shot or otherwise manhandled.

    Potter Stewart:

    They didn’t say or do anything to Henry.

    Edward J. Calihan, Jr.:

    No, they just went down.

    Potter Stewart:

    Went down.

    Edward J. Calihan, Jr.:

    That’s right.

    Earl Warren:

    Is there any indifference of opinion between you and counsel for the Government as to when the arrest was made?

    Edward J. Calihan, Jr.:

    Now, Your Honor, on the argument in the Seventh Circuit, counsel for the Government admitted that at the time the vehicle is stopped, the arrest occurred, but the decision of the Court of Appeals is at variance with that.

    Edward J. Calihan, Jr.:

    Now, we contended that — that there was not probable cause to stop that vehicle, and I think that inferentially, in the Court’s opinion, they recognize that, because they have set up two standards.

    At page 85 of the — of the transcript, the Court of Appeals says, “But it is clear that here the facts within the agent’s knowledge amount to more than mere suspicion and passed it to probable cause for their action and stopping the appellants’ car.

    The arrest and taking into custody of appellants followed the discovery of the cartons of radios bearing the shipping labels indicating that they were part of an interstate shipment and the far from satisfactory explanation by the appellants in regard to the ownership of the cartons.”

    Oh, that’s where we partly come.

    It is the petitioner’s contention that if they didn’t have probable cause when that vehicle was stopped by the head on activity of the FBI automobile, they didn’t acquire it later by the discovery of the cartons and the far from satisfactory import.

    And I think that’s completely consistent with this Court’s ruling, and it is certainly consistent with what the State of Illinois has held.

    And it is my understanding also from this Court’s decision that in an arrest without warrant, the law where the arrest takes place has some governing application.

    Earl Warren:

    We’ll recess now, Mr. —

    Edward J. Calihan, Jr.:

    Thank you.