State v. Ruiz

              THE UTAH COURT OF APPEALS

                      STATE OF UTAH,
                         Appellee,
                            v.
                   ANTONIO VALENTIN RUIZ,
                        Appellant.

                            Opinion
                        No. 20190809-CA
                    Filed September 2, 2021

           Second District Court, Ogden Department
              The Honorable Reuben J. Renstrom
                        No. 181900918

         Joseph Jardine and Peter D. Goodall, Attorneys
                          for Appellant
          Sean D. Reyes and Jeffrey S. Gray, Attorneys
                         for Appellee

JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion,
   in which JUDGE JILL M. POHLMAN and SENIOR JUDGE KATE
                     APPLEBY concurred. 1

CHRISTIANSEN FORSTER, Judge:

¶1     Ogden City police officers stopped Antonio Valentin Ruiz
on suspicion of brandishing a firearm during a disturbance.
During the stop, an officer deployed a drug detection K-9 to
conduct an exterior sniff of Ruiz’s car. As the K-9 passed the
driver-side door of the vehicle—the window of which was
partially open—he paused, changed his behavior, dropped to all
fours, and spontaneously jumped into the car through the


1. Senior Judge Kate Appleby sat by special assignment as
authorized by law. See generally Utah R. Jud. Admin. 11-201(7).
                          State v. Ruiz


halfway-open window. After about thirty seconds, the K-9
stopped and stared at the center console, indicating that he had
located the source of the contraband odor. An officer searched
the car and found rolling papers in the center console and, more
significantly, a loaded handgun under the driver seat. Ruiz was
arrested and charged with possession of a firearm by a restricted
person. 2 The district court denied Ruiz’s motion to suppress the
evidence on constitutional grounds, and Ruiz pleaded guilty
while preserving his right to appeal the court’s order denying
his motion. We affirm.


                        BACKGROUND

¶2     In April 2018, a police officer (Sergeant) responded to a
report of four men “getting out of a white, older-model Cadillac”
and “brandishing firearms” outside a house in Ogden, Utah.
Sergeant, who was familiar with the address of the house
because he had driven by it earlier as part of his normal patrol
duties, recalled having observed the presence of a similar car
there. Another responding officer reported that the car was not
currently at the house, so Sergeant parked down the street from
the house in case the vehicle should return. Sergeant noticed a
car matching the description from the earlier report “slowly
coming up the road” and concluded the driver “may have seen
the [police] activity going on at the house and then made a quick
turn onto” a nearby street. Sergeant followed the car and noticed

2. “Under Utah law, possession of a weapon by a restricted
person is a crime that can be charged as anything from a class A
misdemeanor up to a first-degree felony, depending on the type
of weapon involved and on various other factors, including the
defendant’s criminal history.” State v. Gallegos, 

,
¶ 4 n.1, 

. Ruiz is a restricted person because of his
criminal history and was accordingly charged with a seconddegree felony. See 

(2)(a) (LexisNexis
2017).




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                          State v. Ruiz


that it had pulled into the rear parking lot of a nearby apartment
building. Sergeant activated his emergency lights, pulled into the
parking lot, and requested backup.

¶3     As he was pulling into the parking lot, Sergeant saw the
sole occupant and driver, later identified as Ruiz, get out of the
car. Sergeant told Ruiz that police were investigating a firearm
disturbance and asked him if he had any weapons. Ruiz said he
did not and agreed to let Sergeant “check [his person] real
quick” just to verify. The frisk did not reveal any weapons.

¶4     During the investigation, Sergeant received an update
that the house was a known gang residence and other officers
had identified gang members living there. This news, coupled
with Ruiz’s evasive driving and the investigation of the earlier
firearm disturbance, led Sergeant to suspect “there might be a
gun” in the car. Sergeant asked Ruiz if he could search the car,
but Ruiz refused, saying that the car belonged to his father.

¶5      Several officers arrived at the parking lot, including an
officer (Officer) and his K-9, Odin. While Sergeant was speaking
with Ruiz, Officer walked Odin around the exterior of the car.
Officer’s body-camera footage shows that three of the car’s
windows (driver, passenger, and rear passenger) were partially
open by approximately one foot. Officer explained that as Odin
walked by the driver-side window, he “sniff[ed] intently in there
and then he jumped into the car,” even though Officer was
trying to restrain him because he “didn’t want him to get hurt
trying to jump in that window.” Officer described this change in
behavior as an “alert,” which Odin displays by raising his ears,
becoming “more focused,” and “inhaling in a different manner.”
Odin spent about thirty seconds inside the car, during which
time he “gave a positive indication of the odor of narcotics.”
According to Officer, Odin “indicates” by stopping and
staring—“he’ll just freeze and stare at the area where the odor
is.” Odin then jumped out of the car through the same window,
and Officer returned him to the police cruiser.




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                            State v. Ruiz


¶6     When asked whether there were drugs in the car, Ruiz
told Officer there were not. Officer searched the car and found
rolling papers in the center console and a fully loaded handgun
under the driver seat.

¶7      Ruiz was charged with possession of a firearm by a
restricted person. Ruiz moved to suppress evidence of the
firearm, wrapping papers, and any statements he made
following the search of the car, arguing that his Fourth
Amendment rights were violated when Odin entered the car.
The State opposed the motion. Officer and the director of the
State’s K-9 training program (Director) testified at the
evidentiary hearings on Ruiz’s motion.

¶8      Officer and Director each described how a K-9 signals that
it has detected the odor of contraband it has been trained to find.
Officer explained that a K-9 will change its behavior to show it
has detected the odor by giving an “alert,” meaning “a change of
behavior.” Officer described Odin’s “alert” behavior:

       It’s like he’s searching, and all of a sudden, aha,
       I’ve got it, and he’ll start bracketing, working in the
       area.

       ....

              It’s different depending on what it is. But he
       will usually go from . . . just direct searching to a
       more closed-mouth, more intent [sniffing]. His ears
       pick up. His tail kind of gets a little more rigid,
       might wag a little. And he’ll start directing in a
       more focused area.

¶9     Director explained that an “alert is a natural behavior
exhibited by each individual dog” in which a K-9 shifts from “a
general sniffing behavior to a . . . focus on a certain area. . . .
[T]he dog tries to focus in using the air current available to it on
the source of the odor.” Moreover, Director explained that when



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                            State v. Ruiz


a K-9 alerts, “the sniffing pattern[] tends to change from being a
moderate amount of sniffing, one sniff after another, sort of a
sniff, sniff, sniff, sniff throughout the search area to . . . a deep,
nasal inhalation that . . . is normally easy to hear even from
several feet away.” And when a K-9 alerts, it generally
discontinues the sniff pattern and “stays right where it is” to find
the “strongest source of odor.” Officer testified much the same:
“[T]he dog’s trained” so that “when he smells the odor, he’s
going to try and get as close to it as he can. We train him to take
it to the source.”

¶10 Officer and Director also testified about the training K-9s
receive. Officer testified that Odin was trained to “follow his
nose anywhere to get his reward.” He clarified that Odin was
never trained “to go into cars, and [Officer had] never trained
[Odin] to stay out, either.” Rather Officer had “trained him to
follow his nose to the source.” Officer testified that Odin had
been trained to indicate on the odors of marijuana, cocaine,
methamphetamine, and heroin.

¶11 Director explained that K-9s are initially selected because
they have “an extremely high drive to hunt.” He elaborated,

              Once that dog with such a high work ethic
       learns that finding [certain] odors will produce . . .
       a reward, then that dog becomes very intense in
       finding the target odor once it has been given the
       direction to search, to sniff.

              . . . [T]he only training we have to give them
       is how to go about doing what they have very high
       genetic potential to do.

             And so . . . we more or less channel their
       working drives . . . towards certain odors and away
       from other odors.

Director continued,


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                           State v. Ruiz


      Once the dog understands the task that we want
      him to perform, we really only have to kind of
      point him in the right direction.

             . . . Instead of letting the dog just run around
      haphazard as the dog may do, the officer makes a
      systematic search pattern and encourages the dog
      to stay on the vehicle; in this case, stay on the
      vehicle that the officer would like the dog to sniff
      and not run into other areas that may not be part of
      the investigation.

¶12 Director explained that K-9 officers are trained to “not do
anything to change [the] configuration” of a vehicle they are
searching. Specifically, if the vehicle’s windows are rolled up,
officers are trained “to take the dog around the outside of the
car, but they would not be allowed to roll down windows or
open doors.”

¶13 With regard to K-9s entering a vehicle, Director testified
that “officers should not encourage a dog to jump in a car.” But
when a K-9 detects a target odor of a contraband substance, the
K-9 reacts. Director further explained,

             We also understand that this dog is a
      wonderful sniffing instrument. And if he smells a
      target odor on the interior of the car, whether he
      can gain access or not, he should focus in on
      whatever that source of odor is.

              And if—if the dog perceives that it can get
      inside the car, then it is doing so on its own
      initiative, and we are not encouraging, we are not
      coercing or coaxing the dog to go in the car, then
      that is—that is allowed according to our
      understanding of current laws and court rulings.




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                            State v. Ruiz


¶14 In the case of K-9s detecting drug odors through open
windows, Director explained that odors detectable to a K-9 are
treated similarly to odors detectable to a human officer. “If an
officer who has experience and training in the detection of the
smell of narcotics smells something, then they also can go in
based on the plain smell . . . .” Director explained that, in a like
manner, “[i]f a dog smells a target odor which is . . . contraband
. . . , the dog will act.” Director continued, “So there’s a parallel
between what the dog does and what the human officer does. So
there is no difference,” except that the K-9 has a better “sniffer.”

¶15 Regarding the absence of any drugs found in Ruiz’s
vehicle, Officer and Director explained that it did not mean
Odin had made a mistake. Instead, Odin may have detected
the residual odor of contraband that had been in the car.
Moreover, Officer explained that Odin is capable of detecting
the odor of very small amounts of contraband that may not
be readily observable to a human officer conducting a
search because the bits of the illegal substance may have fallen
into the carpet or between the seats. Director also stated that
although it was “always possible” for a K-9 to alert on a nontarget odor, “the probability of that is very, very low due to the
nature of the training . . . . And statistically that almost never
happens.”

¶16 In ruling on the motion to suppress, the district court
found that (1) the windows of Ruiz’s car were partially open, (2)
“Odin jumped into the vehicle through one of the partially
opened windows,” (3) Odin’s leap into the vehicle occurred
“[w]ithout discernable warning” and Officer “appeared to be
surprised by the leap,” (4) Officer did not attempt to restrain the
leaping K-9 and could be heard in the video footage commenting
“that the dog was going to hurt himself,” (5) it seemed “Odin
could have been hurt if [Officer] attempted to yank him out of
the vehicle or even restrain him,” (6) Officer “did not encourage
the leap nor the sniff of the interior of the vehicle,” and (7) “the
police did not open the windows or encourage the dog to enter
the vehicle.” Noting that “unencouraged trained canines who



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                          State v. Ruiz


spontaneously enter a vehicle do not violate the Fourth
Amendment of the United States Constitution” and that
“[p]olice passivity, when a trained canine spontaneously enters a
vehicle, does not amount to encouraging the canine to enter the
vehicle,” the court concluded “that the search following Odin’s
entrance of [Ruiz’s] vehicle was not in violation of the United
States Constitution.” Accordingly, the court denied Ruiz’s
motion to suppress.

¶17 Ruiz entered a conditional guilty plea, reserving his right
to appeal the denial of his motion to suppress. See State v. Sery,

, 938–40 (Utah Ct. App. 1988) (allowing conditional
pleas that preserve suppression issues for appeal); see also Utah
R. Crim. P. 11(j). Ruiz appeals.


            ISSUE AND STANDARDS OF REVIEW

¶18 Ruiz contends that the district court erred when it denied
his motion to suppress, arguing that Odin’s leap into the car
violated the Fourth Amendment’s proscription against
unreasonable searches and seizures. “We review the district
court’s decision to grant or deny a motion to suppress for an
alleged Fourth Amendment violation as a mixed question of law
and fact.” State v. Mitchell, 

, 

(quotation simplified). “While the court’s factual findings are
reviewed for clear error, its legal conclusions are reviewed for
correctness, including its application of law to the facts of the
case.” State v. Fuller, 

, 

. 3



3. In the alternative, Ruiz argues that even if the search was
permissible under federal precedent, “the State Constitution
should be interpreted to provide greater protection so as to
require suppression.” Ruiz contends that “existing federal
precedent” gives “inconclusive guidelines as to the acceptable
parameters of constitutional conduct and citizens are provided
                                                  (continued…)


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                           State v. Ruiz


                            ANALYSIS

¶19 Ruiz asserts that the district court erred in denying his
motion to suppress because Odin’s entry into the interior of his
car through the partially open window violated his Fourth
Amendment rights. “In addressing this assertion, we note that
while a dog sniff of the exterior of a vehicle parked in a public
place is not a Fourth Amendment intrusion, a drug dog’s entry
into a vehicle prior to the establishment of probable cause may
raise Fourth Amendment concerns because people have a
reasonable expectation of privacy in the interior of their
automobiles.” United States v. Lujan, 

 (10th
Cir. 2010) (quotation simplified); accord United States v. Wilson,

 (D. Md. 2011); see also State v. Larocco, 

 (Utah 1990) (“[A] constitutional privacy interest
exists in the interior of an automobile . . . .”).

¶20 Federal appellate courts, including the Tenth Circuit, have
“upheld the legality” of a K-9’s entry into a vehicle while
conducting an exterior sniff when, as here, “(1) the dog’s leap

(…continued)
with inconsistent protection of their rights” insofar as interior
K-9 sniffs are concerned. “While we acknowledge that ‘choosing
to give the Utah Constitution a somewhat different construction
may prove to be an appropriate method for insulating this state’s
citizens from the vagaries of inconsistent interpretations given to
the fourth amendment by the federal courts,’ [Ruiz] has not
convinced us that deviating from the federal standard is
appropriate in this case.” See State v. Lloyd, 

,

 (citation omitted) (quoting State v. Watts, 

, 1221 n.8 (Utah 1988)). As we explain, existing federal
precedent on the issue presented in this appeal is not plagued by
“the vagaries of inconsistent interpretations,” see 

 (quotation
simplified), as Ruiz suggests. Accordingly, we decline Ruiz’s
invitation to analyze Odin’s entry into the car under a more
expansive standard.




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                            State v. Ruiz


into the car was instinctual rather than orchestrated and (2) the
officers did not ask the driver to open the point of entry, such as
a hatchback or window, used by the dog.” United States v.
Vazquez, 

 (10th Cir. 2009); accord United States v.
Moore, 

 (10th Cir. 2015) (concluding that
a K-9’s entry through a window the suspect had left open did
not violate the Fourth Amendment); United States v. Sharp, 

 (6th Cir. 2012) (“[A] trained canine’s sniff inside of
a car after instinctively jumping into the car is not a search that
violates the Fourth Amendment as long as the police did not
encourage or facilitate the dog’s jump.”); United States v. Pierce,

, 214–15 (3d Cir. 2010) (holding that a K-9
“act[ing] instinctively and without facilitation by his handler”
and jumping through an already open window does “not
constitute a search requiring a warrant or probable cause”);
United States v. Lyons, 

 (8th Cir. 2007) (“Absent
police misconduct, the instinctive actions of a trained canine do
not violate the Fourth Amendment.”).

¶21 First, “‘instinctive’ implies the K-9 enters the car without
assistance, facilitation, or other intentional action by its handler.”
Pierce, 

. A drug-sniffing “dog’s instinctive actions
[do] not violate the Fourth Amendment” where “[t]here is no
evidence . . . that the police asked [a suspect] to open the
[vehicle] so the dog could jump in” or “any evidence the police
handler encouraged the dog to jump in the car.” United States v.
Stone, 

 (10th Cir. 1989); see also Felders ex rel.
Smedley v. Malcom, 

 (10th Cir. 2014) (“Where
there is evidence that it is not the driver but the officers who
have created the opportunity for a drug dog to go where the
officer . . . cannot go, the Fourth Amendment protects the
driver’s right to privacy to the interior compartment until the
dog alerts from the exterior of the car.”); United States v. Minor,
No. 417-cr-00005-SEB-VTW-01, 

, at *4 (S.D. Ind.
Oct. 23, 2019) (noting that the Third, Sixth, Eighth, and Tenth
Circuits have unanimously held as reasonable those searches in
which a drug-sniffing K-9 jumps into a vehicle so long as the
officers did not request that the window be opened or prompt


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                            State v. Ruiz


the K-9 to jump into the vehicle). Thus, while an officer may “not
direct the dog to enter the vehicle without a warrant or the
owner’s consent,” “the instinctive actions of a trained canine do
not violate the Fourth Amendment.” Lyons, 

.

¶22 Second, “the fact that the passenger window of the
vehicle [is] open, creating an opportunity for the dog to breach
the interior of the vehicle, [does] not render [a] search unlawful,”
provided that the officer does not open the window, order the
window be opened, or order the window to remain open. See
United States v. Williams, 

, 844–45 (D. Minn.
2010). But when an officer opens the door of a vehicle, “thus
creating the opportunity” for a drug-sniffing K-9 to enter a
vehicle, that entry violates the Fourth Amendment because the
officer “facilitated” the K-9 sniff of the vehicle’s interior. See
United States v. Winningham, 

, 1330–31, 1331 n.2
(10th Cir. 1998).

¶23 Ruiz does not contend that the police opened the
windows or engaged in any sort of misconduct at the scene in
facilitating Odin’s entry into the car. Rather, he argues that (1)
Officer should have restrained Odin’s entry into the car and (2)
Odin’s training encouraged him to enter open windows.

¶24 Ruiz asserts that Officer “had the opportunity to call
[Odin] back or tell him to ‘stop’ and ‘come.’” Ruiz contends that
because Officer “had the opportunity to correct the
unconstitutional conduct of his canine but did not do so,”
“suppression is appropriate under federal law.” But Ruiz cites
no precedent establishing that an officer’s failure to restrain a K-
9 trying to find the source of an odor by jumping through an
open window results in an unconstitutional search. Federal
appellate courts have held that officers may not encourage or
facilitate a K-9’s entry into a vehicle, not that they are required to
actively prevent the K-9’s entry. Moreover, Officer did not have
the opportunity to prevent Odin from jumping into the car; Odin
made his leap without direction, with no discernable warning,
and to Officer’s surprise. Finally, Officer had good reason for not



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                            State v. Ruiz


attempting to restrain Odin when he jumped. As the court
observed in its findings of fact, “It seems obvious that Odin
could have been hurt if [Officer] attempted to yank him out of
the vehicle or even restrain him.”

¶25 Moreover, Odin’s leap through the partially open
window was instinctual because he was following his natural
drive to locate the source of the contraband odor that he had
learned to identify. As Officer and Director testified, Odin was
trained to “follow his nose” to the source of the odor of
contraband drugs. See supra ¶ 10. But Ruiz argues that Odin’s
“entry into the vehicle was not instinctive, it was trained.” In
making this argument, Ruiz does not sufficiently distinguish
between training and instinct. In the context of a K-9 sniff,
“‘instinctive’ implies the K-9 enters the car without assistance,
facilitation, or other intentional action by its handler,” Pierce, 

, not that the K-9 is untrained. Ruiz’s reasoning that
Odin’s training precluded his unprompted leap through the
open window from being “instinctive” does not adequately
separate the training of K-9s from their natural instinct. In other
words, Odin’s natural drive to locate the source of the odor of
drugs emanating through an open window was instinctive even
though he had learned he would be rewarded when he
pinpointed the source. Odin’s training was not ultimately the
reason he jumped through the open window during the search;
rather, he instinctively entered the car when he detected an odor
he had been trained to locate.

¶26 More specifically, Ruiz argues that Odin was encouraged
to enter the car by virtue of his training: “When a [K-9] jumps
into a car [during training], he is not told, ‘no’ or ‘come,’ he is
rewarded when he finds drugs. By training Utah’s [K-9s] in this
way, the police are encouraging them to enter vehicles.” From
this aspect of Odin’s training, Ruiz concludes that Director and
Officer “trained Odin to enter open windows.” But Ruiz misses
the mark here. While Officer and Director each testified that K-9s
are trained to sniff vehicles with open windows, neither stated
that Odin or other K-9s are trained to jump through open



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                           State v. Ruiz


windows or enter vehicles. Officer explicitly stated that Odin has
“never been trained to jump in the window.” And Director
merely stated that Odin’s training included vehicles with open
windows. Thus, the record testimony was that Odin was trained
to sniff and identify odors emanating from vehicles. Odin was
not trained to jump into vehicles in search of drug odors; rather,
he was trained to follow the drug odors emanating from
vehicles. In other words, Odin entered the car based on his
natural instincts when he detected the targeted odor while he
was sniffing the exterior of Ruiz’s vehicle.

¶27 A recent opinion from the Idaho Court of Appeals
addresses a similar argument to the one Ruiz makes here. See
State v. Randall, No. 46893, 

 (Idaho Ct. App.
Aug. 13, 2020), review granted (Mar. 18, 2021). In that case, during
an exterior sniff of a car, a K-9 jumped through an open window
and, once inside the car, alerted on the back seat. Id. at *2. A
subsequent search revealed sixty-five pounds of marijuana. Id.
On appeal, the defendant alleged the K-9’s “entry into the
interior of [the] car absent probable cause constituted an
unlawful search.” Id. at *3. Among the defendant’s arguments
was that “law enforcement officers could train drug-detection
dogs to jump through open car windows whenever possible;
therefore, there [was] insufficient evidence to conclude that [the
dog] jumped through the window to follow a scent as opposed
to following his training to jump through windows.” Id. at *7.
The court rejected this argument, stating that there was “no
evidence in the record suggest[ing] [the K-9] was following
training to jump through an open window as opposed to
tracking a scent to its source.” Id.

¶28 While this Idaho decision has no precedential value for
our court, we find the reasoning persuasive. As in that case,
there is no evidence here to suggest that Odin was trained to
jump through open windows in search of drug odors. But there
is ample evidence that Odin was trained to “follow his nose,” see
supra ¶ 10, to the source of contraband odor he had already
detected. The leap into Ruiz’s car was a consequence of Odin



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                             State v. Ruiz


already having detected the odor and tracking that odor. Put
another way, the leap into the car did not result in Odin
detecting the odor; rather, the detection of the odor resulted in
Odin’s leap. It was thus Odin’s detection of the targeted odor
that justified his entry into the vehicle. See United States v. Mason,

 (4th Cir. 2010) (stating that when a “dog
perceived a narcotics odor while outside the car,” it “creat[ed]
probable cause to believe that narcotics were present even prior
to the dog’s entry into the vehicle”); see also State v. Griffith, 

, 

 (“If a car is readily mobile and
probable cause exists to believe it contains contraband, the
Fourth Amendment permits police to search the vehicle without
more.” (quotation simplified)). Borrowing words from the Idaho
decision, Odin “smelled drugs while outside the car and jumped
through the open window to follow the scent to its source.” See
Randall, 

, at *7.

¶29 Given the circumstances prompting Odin’s leap through
the open window, we conclude that Odin’s entry into Ruiz’s car
did not run afoul of the Fourth Amendment.


                          CONCLUSION

¶30 We conclude that the district court did not err in denying
Ruiz’s motion to suppress. The police did not engage in any
misconduct—that is, they did not cause the windows of Ruiz’s
vehicle to be opened or encourage Odin to make a leap.
Moreover, Odin instinctively—and unprompted by police—
followed the odor of a narcotic substance into Ruiz’s car.
Affirmed.




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