OGDEN — An Ogden police dog’s leap through a half-open car window while sniffing for drugs was part of an unconstitutional search and seizure, argued a man convicted after the incident. But his appeal has been rejected by the Utah Court of Appeals, which ratified police practices and the handling of the tenacious K-9, Odin.

Police said they were investigating a weapons disturbance on April 25, 2018, and followed a car into an apartment parking lot, where Antonio Valentin Ruiz got out of the car. They asked him if he had a firearm; he said he did not and invited them to frisk him. No gun was found.

Because Ruiz had driven evasively and a car with a description matching his had been seen at the site where several men allegedly brandished guns, an officer asked to search Ruiz’s car. Ruiz refused, saying the car was his father’s.

Odin’s handler set him to sniffing around the car and the dog paused at the partially open driver’s window and jumped inside. According to the court opinion, the dog “gave a positive indication of the odor of narcotics.”

The dog jumped out and police asked Ruiz if there were drugs in the car and he said there were not. An officer searched the car and found no drugs, but he did find rolling papers in the center console and a loaded handgun beneath the driver’s seat.

Ruiz was charged with second-degree felony possession of a firearm by a restricted person. He later pleaded guilty after his attorney unsuccessfully tried to have the evidence suppressed on the grounds the search violated his Fourth Amendment right to freedom from illegal search and seizure. In the plea, he preserved his right to appeal the evidence issue.

The Utah Court of Appeals, in an opinion Thursday, ruled that based on expert testimony and the testimony of the K-9 officer, the dog’s leap into the car was “instinctive” and was not a trained behavior.

The officer testified Odin was trained to “follow his nose anywhere to get his reward.” He said the dog was never trained “to go into cars” and he had “never trained him to stay out, either.”

A state official in charge of K-9 training testified the dogs are trained to focus on the source of drug odors. “And 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. That is allowed according to our understanding of current laws and court rulings,” the official said.

The officer and the official also said the fact that no drugs were found in the car does not mean Odin made a mistake. He may have detected “the residual odor of contraband” that humans cannot detect, the officer said.

Second District Judge Reuben Renstrom ruled the evidence admissible because the officer was surprised by the dog’s leap and he did not attempt to stop the dog because he feared it may be hurt jumping through the window opening.

“Unencouraged trained canines who spontaneously enter a vehicle do not violate the Fourth Amendment” and that “police passivity, when a trained canine spontaneously enters a vehicle, does not amount to encouraging the canine to enter the vehicle,” Renstrom said.

Attorneys cited a 10th U.S. Circuit Court of Appeals ruling in a similar case that said “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.” However, the Utah Court of Appeals quoted additional federal rulings upholding searches in cases where “before the dog’s leap officers did not ask the driver to open the point of entry, such as a hatchback or window, used by the dog.”

In such cases, the state court added, a dog’s instinctive leap without an officer’s facilitation “does not constitute a search requiring a warrant or probable cause.”

Ruiz’s appeal argued the officer should have restrained Odin and he contended the dog’s training “encouraged him to enter open windows.” By training dogs they will be rewarded when they find drugs, they are in effect being trained to enter vehicles, the appeal said.

The court’s ruling said Ruiz’s argument “misses the mark.”

“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,” the court opinion said. “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.”

It was not known whether Ruiz would appeal the ruling. Efforts to reach Ruiz’s appellate attorney, Joseph Jardine, were unsuccessful.

According to court records, Renstrom sentenced Ruiz to one to 15 years in prison and suspended it, ordering him instead to serve 60 days in the Weber County Jail. He successfully completed his parole on April 5 this year.

Newsletter