State v. Ruiz

497 P.3d 832

STATE of Utah, Appellee,

v.Antonio Valentin RUIZ, Appellant.

No. 20190809-CA

Court of Appeals of Utah.

Filed September 2, 2021

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

Opinion

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 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 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.

¶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 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,

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.

¶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...