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United States v. Guidry

United States Court of Appeals, Seventh Circuit

March 22, 2016

JASON B. GUIDRY, Defendant-Appellant

         Argued February 17, 2016

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          Appeal from the United States District Court for the Eastern District of Wisconsin. No. 13-CR-16 -- Rudolph T. Randa, Judge.

         For United States of America, Plaintiff - Appellee: Joseph R. Wall, Attorney, Office of The United States Attorney, Milwaukee, WI.

         For Jason B. Guidry, also known as: Jay, also known as: J, Defendant - Appellant: Johanna M. Christiansen, Attorney, Thomas W. Patton, Attorney, Office of The Federal Public Defender, Peoria, IL.

         Before BAUER, FLAUM, and WILLIAMS, Circuit Judges.


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          Flaum, Circuit Judge.

          Jason Guidry was sentenced to twenty-five years in prison after he pled guilty to possessing and distributing illegal drugs and prostituting women. On appeal, he challenges the district court's denial of his motions to suppress evidence found during searches of his car and his two residences; the imposition of two sentence enhancements; and the imposition of vague, ambiguous, and conflicting conditions of supervised release. For the reasons that follow, we vacate and remand the disputed conditions of supervised release, and affirm Guidry's conviction, prison term, and all other supervised release terms.

         I. Background

         A. Traffic Stop

         On August 21, 2012, City of Sheboygan police officer Dustin Fickett stopped a car driving without license plates. When Fickett approached the car, he recognized Guidry, the driver. Fickett had pulled Guidry over a few months earlier and smelled a strong odor of marijuana, but after searching the car, Fickett did not find any illegal drugs. In the months that followed, Fickett learned that the Sheboygan Detective Bureau suspected that Guidry was using and dealing drugs.

         During this stop, Fickett detected only a faint odor of marijuana, and because it was windy, Fickett was not sure that the odor was emanating from inside Guidry's car. As a result, Fickett did not believe that he had probable cause to search the car.

         Fickett asked Guidry for his vehicle paperwork and identification and Guidry complied. Fickett returned to his car and immediately called officer Trisha Saeger, who handled a drug-detection canine, and asked her to come to the scene. While he waited for Saeger to arrive, Fickett processed Guidry's paperwork and called for a backup officer.

         Saeger arrived about five minutes after Fickett's call, and officer Anthony Hamilton arrived about three minutes after that. When Saeger arrived, Fickett was still preparing Guidry's citation.

         After checking in with Fickett and Saeger, Hamilton approached Guidry's vehicle. Hamilton asked Guidry to exit the vehicle in preparation for a dog sniff, in accordance with standard department procedure. Guidry became argumentative, stated that he did not consent to a dog sniff, and remained in the car, fumbling with paperwork. Hamilton asked Guidry to show his hands and again requested that he step out of the car. This time, Guidry complied. Guidry did not close the door. Moments later, Saeger began the dog sniff.

         Saeger has been working with Bud, her canine, since March 2009. Bud is trained to detect odors of marijuana, cocaine, heroin, and methamphetamine. Bud alerts to an odor change by changing his behavior. He is also trained to " indicate," usually by

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sitting, to an odor of drugs. As soon as Bud passed the driver's open door, Bud alerted. Soon after, Bud indicated an odor of drugs by sitting down in front of the door. Then Bud got up, approached the car, and, according to Guidry, put his head into the car through the open door.

         Fickett told Guidry that Bud had indicated at the driver's door and Guidry admitted that he had smoked marijuana at home and still had a " half blunt" in the car. Saeger then searched the car and found the blunt, as well as a 7 UP " safe can" containing clear plastic baggies of heroin and cocaine. Fickett arrested Guidry.

         B. Searches of Guidry's Residences

         On August 22, 2012, the day after Guidry's arrest, Fickett and Detective Brian Bastil gave sworn testimony to a circuit court commissioner in support of a search warrant for Guidry's residence at 1725 North 12th Street (the " 12th Street residence" ). Fickett described the results of the search of Guidry's car: 15 grams of heroin, individually bagged; 4.1 grams of powder cocaine, individually bagged; and 3.9 grams of crack cocaine, individually bagged. Bastil testified that the car contained a distribution quantity of drugs worth thousands of dollars.

         Bastil also provided information obtained from two confidential informants as part of an ongoing investigation of the 12th Street residence. The first informant, " CI-1," told Bastil that Guidry was prostituting women and selling large amounts of heroin, powder cocaine, crack cocaine, marijuana, and ecstasy from the 12th Street residence. CI-1 admitted to purchasing heroin from Guidry two months earlier. A second confidential informant, " CI-2," also disclosed that Guidry was selling heroin and other drugs from the 12th Street residence, and admitted to purchasing heroin from Guidry at the residence within the past two weeks. Bastil testified that Guidry identified 1725 North 12th Street as Guidry's residence on the night of Guidry's arrest, and that Guidry had admitted to smoking marijuana at his residence immediately before the traffic stop.

         The court commissioner authorized the warrant and Bastil immediately led a search of the 12th Street residence. That search uncovered heroin, powder cocaine, a substantial amount of crack cocaine, a mason jar full of marijuana, and another safe can. A woman present at the residence during the search told Bastil that Guidry maintained another residence on Pine Street in which the exchange of sex and drugs took place. She said that Guidry prostituted women there, that he took about ninety percent of the money, and that he " feeds [the women] with heroin."

         A few hours later, Bastil again appeared before a court commissioner seeking a warrant to search Guidry's Pine Street residence. He described the drugs that were found at the 12th Street residence, as well as the information he learned from the woman who was present during the search. Bastil also testified that named individual Chelsee W. and another known female had visited Guidry's Pine Street residence within the previous three weeks and had received heroin from Guidry in exchange for sex acts. Chelsee had told Bastil that the second female had overdosed at the residence after receiving her heroin, a fact that Bastil independently confirmed. The court commissioner authorized the search warrant.

         C. Motions to Suppress

         On June 10, 2013, Guidry filed a motion to suppress evidence found in his car during the traffic stop. He argued that because the driver's door was open, the police had improperly expanded the dog sniff

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to the interior of his car. A magistrate judge filed a report on July 1, 2013 recommending that the district court deny Guidry's motion because the officers' decision to leave the door open was insufficient to show a desire to facilitate the dog sniff. The magistrate judge also determined that the officers were acting under a reasonable suspicion that the vehicle contained narcotics because Fickett detected a faint odor of marijuana during the traffic stop, Fickett had previously pulled Guidry over and detected a strong odor of marijuana, and Fickett had since received ...

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