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United States v. Oswalt

October 10, 2008


The opinion of the court was delivered by: Michael J. Reagan United States District Judge

Memorandum and Order

REAGAN, District Judge


A May 22, 2008 indictment charges Herman (a/k/a "Oz") Oswalt -- a prior felon -- with possessing a Ruger semi-automatic .40 caliber pistol (Count 1) and seeks forfeiture of that firearm (Count 2). Defendant Oswalt appeared before Magistrate Judge Proud on May 28, 2008, waived his preliminary hearing and entered a not guilty plea. Trial was set for July 14, 2008 and continued by the undersigned District Judge on Oswalt's motion, which was filed with a speedy trial waiver.

After the undersigned Judge granted Oswalt additional time in which to do so, Oswalt filed a motion to suppress evidence. The need to brief that motion and hold an evidentiary hearing thereon resulted in trial being continued to November 3, 2008. A hearing was conducted October 3, 2008 on Oswalt's motion.

The parties' memoranda supporting and opposing suppression thoroughly frame the issues before the Court. At the October 3rd hearing, five witnesses presented testimony, and the Court took Oswalt's motion under advisement. For the reasons explained below, the Court now DENIES Defendant Oswalt's motion to suppress evidence.


Herman Oswalt ("Defendant") moves this Court to suppress evidence obtained during a May 8, 2008 search of a residence and outbuilding/garage located at 1611 Hastings in Alton, Illinois. That property is owned and occupied by Benjamin Oswalt and his wife, Kathryn Oswalt. Benjamin and Kathryn are Defendant's brother and sister-in-law. The question is whether there was a valid consent for the search. Analysis starts with the events that culminated in that search.

In the Spring of 2008, the Drug Enforcement Administration ("DEA"), working with local police officers on a narcotics task force,*fn1 were investigating the "Invaders Motorcycle Club" for drug trafficking and three unsolved murders. During that investigation, the DEA learned that an Invaders member named Alan Little had been missing since May 31, 2007. While following up on information relating to Little's disappearance, DEA Special Agent Greg Pond learned that Herman Oswalt, a prior felon,

(1) might be involved in Little going missing, and (2) might be storing weapons at 1611 Hastings in Alton. Surveillance of 1611 Hastings began.

During May 8, 2008 surveillance of 1611 Hastings, Agent Pond, along with and other agents and Task Force Officers (collectively referred to as "officers" herein), observed two persons leave the residence and get in a car. The officers followed the car across a bridge from Illinois and into St. Louis County, Missouri. Ultimately, the officers stopped the vehicle for traffic violations, including speeding and improper registration. The traffic stop occurred at Highway 367 and Parker Road. Benjamin Oswalt was driving the vehicle. When the officers "ran" Benjamin's license, they learned of an outstanding warrant or violation in St. Louis County. Benjamin was arrested, taken into custody by a St. Louis County police officer and transported to a St. Louis County holding facility.

Kathryn Oswalt ("Mrs. Oswalt"), the passenger, was not arrested. Mrs. Oswalt, who had the couple's dog in the car with her, was specifically told she was not under arrest. Task Force Officer Jeremiah Henning, a detective with the St. Louis County Police who works with the DEA, advised Mrs. Oswalt that the Task Force was investigating the disappearance of Alan Little, had "intelligence" that Little stashed some belongings at 1611 Hastings before he disappeared, and also believed there might be firearms at the property. While at the site of the traffic stop, with Mrs. Oswalt in the front passenger seat of his vehicle, Detective Henning asked for permission to search the property.

Mrs. Oswalt agreed to the search, both orally consenting and then signing a written consent form. Task Force Officer Christopher Eaves, who was standing outside the front passenger window of Detective Henning's vehicle, was present for and heard Henning's conversation with Mrs. Oswalt, heard her consent to the search of the property, and watched her signed the written consent form.

The "Consent to Search Form" signed by Mrs. Oswalt at 1:20 pm on May 8, 2008 was admitted into evidence, without objection, as Government's Exhibit 1 at the October 3, 2008 hearing. The document is captioned "Consent to Search," appears to be a pre-printed form of the St. Louis County Police Department, was signed by Mrs. Oswalt and Detective Henning, and was ...

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