2021 UT App 94

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).
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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, 2020 UT App 162, 

¶ 4 n.1, 479 P.3d 631. Ruiz is a restricted person because of his 

criminal history and was accordingly charged with a seconddegree felony. See Utah Code Ann. § 76-10-503(2)(a) (LexisNexis 

2017).
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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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20190809-CA 4 2021 UT App 94

¶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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20190809-CA 5 2021 UT App 94

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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20190809-CA 6 2021 UT App 94

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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¶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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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, 

758 P.2d 935, 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, 2019 UT App 190, ¶ 10, 455 P.3d 103

(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, 2014 UT 29, ¶ 17, 332 P.3d 937.3

 

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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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, 398 F. App’x 347, 350 (10th 

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

278 F.R.D. 145, 152 (D. Md. 2011); see also State v. Larocco, 794 

P.2d 460, 466 (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, 2011 UT App 323, ¶ 8, 

263 P.3d 557 (citation omitted) (quoting State v. Watts, 750 P.2d 

1219, 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 id. (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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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, 555 F.3d 923, 930 (10th Cir. 2009); accord United States v.

Moore, 795 F.3d 1224, 1227, 1232 (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, 689 

F.3d 616, 620 (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, 

622 F.3d 209, 211, 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, 486 F.3d 367, 373 (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, 622 F.3d at 214. 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, 866 F.2d 359, 364 (10th Cir. 1989); see also Felders ex rel.

Smedley v. Malcom, 755 F.3d 870, 880 (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, 2019 WL 5420462, 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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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, 486 F.3d at 373.

¶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, 690 F. Supp. 2d 829, 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, 140 F.3d 1328, 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 K9 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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20190809-CA 12 2021 UT App 94

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, 622 

F.3d at 214, 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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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, 2020 WL 4691650 (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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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, 

628 F.3d 123, 130 (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, 2006 

UT App 291, ¶ 6, 141 P.3d 602 (“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, 2020 WL 4691650, 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.