February 17, 2016
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
from the United States District Court for the Eastern
District of Wisconsin. No. 13-CR-16 -- Rudolph T. Randa,
United States of America, Plaintiff - Appellee: Joseph R.
Wall, Attorney, Office of The United States Attorney,
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.
BAUER, FLAUM, and WILLIAMS, Circuit Judges.
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.
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.
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
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.
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
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.
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,"
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.
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.
Searches of Guidry's Residences
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.
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.
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."
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
Motions to Suppress
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
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