Alvarez v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Moon, Judges Coleman and Willis
Argued at Salem, Virginia

JOSE ALVAREZ
OPINION BY
v. Record No. 1524-96-3 CHIEF JUDGE NORMAN K. MOON
MAY 27, 1997
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE
James F. Ingram, Judge
Lawrence D. Gott (Office of the Public
Defender, on brief), for appellant.

Marla Graff Decker, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.

Jose Alvarez appeals from his conviction of possession of

marijuana with intent to distribute in violation of Code

§ 18.2-248. Alvarez asserts that the trial court erred in: (1)

failing to suppress marijuana evidence obtained in a warrantless

search that was based upon a narcotics dog "alerting" on a

package being transported by bus; and (2) admitting an analysis

of the marijuana evidence for which the Commonwealth failed to

establish a proper chain of custody.

Holding that: (1) the marijuana evidence was properly

obtained under the automobile exception to the warrant

requirement; and (2) that the evidence was sufficient to prove

with reasonable certainty that the marijuana seized in New

Orleans was not altered, substituted, or contaminated before

Alvarez received it in Danville and before it was analyzed, we
affirm.

On December 3, 1995, Detectives Clarence Wethern and George

Chenevert of the New Orleans Police Department's Narcotics "K-9"

section, investigated a Greyhound bus at the New Orleans Union

Passenger Terminal. While Chenevert's narcotics dog, "K-9

Robbie," was inspecting one of the bus' cargo areas, the dog

"hit" or "alerted" on a cardboard U-Haul box by biting into the

box. While K-9 Robbie's trained indication for narcotics was a

"scratch," the dog occasionally bit into objects it hit upon.
Chenevert, following K-9 unit procedure, attempted to

distract the dog from the box by throwing a narcotics-scented toy

into the cargo area. The dog did not release the box and

Chenevert had to move around to the other side of the bus to the

opposite cargo area entrance in order to reach the dog. By the

time Chenevert reached the opposite side of the bus and pulled

the dog off, the box had been torn "pretty bad[ly]." As a result

of the tearing, Chenevert could see two large round wheels and

two smaller "bricks," which he suspected, and which were later

determined, to be marijuana. Chenevert had fifteen years of

experience as a police officer and testified that he recognized

both the look and smell of marijuana.

Chenevert seized the box and placed it on a luggage cart to

which he had leashed his dog. As Chenevert began to roll the

cart toward the terminal, the dog again attacked the package,

causing it to rip open and the contents to fall to the ground.

Wethern took control of the cart, box, and the contents, while

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Chenevert returned the dog to his truck.

Inside the bus station, Wethern and Chenevert noticed the

package's mailing address indicated it was being shipped to

Alvarez at an address in Martinsville, Virginia. Wethern

telephoned the Martinsville police and between 8:50 p.m. and 9:50

p.m., spoke with Special Agent Moore of the Virginia State

Police, who agreed to take over the investigation of the matter.

The bus, on which the package was discovered, left the station

at 7:30 p.m. Wethern informed Moore that he would rebox the

package and ship it to Greensboro, N.C., the nearest airport to

Moore, so Moore would receive the package before the bus arrived

in Martinsville. Wethern sealed the original box with evidence

tape and put it in another box, addressed to Moore. No flight

was available that evening, so Wethern stored the box in the New

Orleans Police Department evidence room where Chenevert picked it

up the next morning. Chenevert then put the box on a 5:00 a.m.

Delta Airlines flight and telephoned Moore, giving him the flight

information.
Moore met an agent of the North Carolina Bureau of

Investigation in Greensboro. The two officers took possession of

the box at approximately 4:00 p.m., as the box was removed from

the arriving airplane. Moore took the package to the Airport

Police Authority's office and opened it. Inside was a sealed box

which contained a torn U-Haul box, two wheels of marijuana, two

bricks of marijuana, and the original Greyhound "bus bill."

Moore testified that he could detect the odor of marijuana as he

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opened the package. Moore repackaged all of the marijuana in a

new U-Haul box, relabeled, and readdressed the box according to

the information contained on the original box. Moore took the

repackaged box, the old U-Haul box, the bus bill, and the box

that had been used to ship the package from New Orleans, and left

the Greensboro Airport at approximately 5:00 p.m. He arrived at

the Danville Airport at approximately 5:30 p.m. and proceeded to

a Hardees restaurant in Danville, a scheduled meal stop for the

bus on which the package had been found. At approximately 5:45

p.m. the bus arrived, and Moore placed the new package in the

cargo area of the bus. Moore then boarded the bus and rode the

remaining distance to the Danville bus station.
At the bus station, Moore exited the bus, gave the bus bill

to Virginia State Police Agent Lyon, who was posing as a baggage

handler, and went inside with Lyon to wait for the box to be

picked up. Detective Jerry Chaney of the Danville police

retrieved the package from the bus, brought it into the station,

and placed it in a back room in the baggage storage area. At

approximately 6:25 p.m., Alvarez and Jose Benitez arrived and

presented a copy of the bus bill to the ticket agent in order to

collect the package. The ticket agent went to the back and

motioned to Lyon and Chaney. Chaney retrieved the package, to

which he had attached the original bus receipt, and took it to

the ticket counter. Alvarez signed the receipt for the box and

had Benitez retrieve it from the luggage counter. Both men then

proceeded to a car in the parking lot in which a woman was

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sitting. The police approached and asked the three individuals

to accompany them to the police station. Chaney took possession

of the box.

Admission of Marijuana Evidence

Alvarez asserts that the trial court erred in admitting the

marijuana because the box containing the marijuana had been

seized and searched by police without a warrant.

The Fourth Amendment protects the "right of the people to be

secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures." U.S. Const. amend. IV.

There are, however, certain well established exceptions to the

Fourth Amendment's warrant requirement. Among them is the

"automobile exception," articulated by the Supreme Court in
Carroll v. United States, 267 U.S. 132 (1925), in which the Court

recognized that there is
a necessary difference between a search of a
store, dwelling house or other structure in
respect of which a proper official warrant
readily may be obtained, and a search of a
ship, motor boat, wagon, or automobile, for
contraband goods, where it is not practicable
to secure a warrant because the vehicle can
be quickly moved out of the locality or
jurisdiction in which the warrant must be
sought.

Id. at 153. Accordingly, the Carroll Court held that "a

warrantless search of an automobile based upon probable cause to

believe that the vehicle contained evidence of crime in the light

of an exigency arising out of the likely disappearance of the

vehicle did not contravene the Warrant Clause of the Fourth

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Amendment." California v. Acevedo, 500 U.S. 565 (1991) (citing

Carroll, 267 U.S. at 158-59).

While Carroll clearly established an automobile exception,

its progeny developed along two conflicting lines, creating

confusion concerning proper application of the exception.

Compare United States v. Ross, 456 U.S. 798 (1982), with United

States v. Sanders, 442 U.S. 753 (1979), and United States v.

Chadwick, 433 U.S. 1 (1977).
In Chadwick and Sanders, the Court held that where police

have probable cause to search a closed container within a

vehicle, but do not have probable cause to search the vehicle

itself, the automobile exception would not permit a warrantless

search of the container. Chadwick, 433 U.S. at 13; Sanders, 442

U.S. at 765. However, in Ross, the Court held that under the

Carroll doctrine, "if probable cause justifies the search of a

lawfully stopped vehicle, it justifies the search of every part

of the vehicle and its contents that may conceal the object of

the search." 456 U.S. at 823. Ross dissenters rejected the

holding as inconsistent with the Chadwick-Sanders line, and

opined that they could not see why a container which police had

probable cause to search, and which was found in a car, was "more

private, [or] less difficult for police to seize and store, or in

any other relevant respect [was] more properly subject to the

warrant requirement, than a container that police discover in a

probable cause search of an entire automobile." 456 U.S. at

839-40.

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 Recognizing the doctrinal conflicts present in the Carroll

progeny, and noting the virtue of providing clear and unequivocal

guidelines for law enforcement, the Court, in Acevedo, held that

"the Fourth Amendment does not compel separate treatment for an

automobile search that extends only to a container within the

vehicle" and therefore
[t]he interpretation of the Carroll doctrine
set forth in Ross now applies to all searches
of containers found in an automobile. In
other words, the police may search without a
warrant if their search is supported by
probable cause.
* * * * * * *

Until today, this Court has drawn a
curious line between the search of an
automobile that coincidentally turns up a
container and the search of a container that
coincidentally turns up in an automobile.
The protections of the Fourth Amendment must
not turn on such coincidences. We therefore
interpret Carroll as providing one rule to
govern all automobile searches. The police
may search an automobile and the containers
within it where they have probable cause to
believe contraband or evidence is contained.

500 U.S. at 579-80.

Here, the trial court admitted into evidence marijuana that

had been found in a box in the cargo bay of a bus. In

considering a trial court's ruling on a suppression motion, we

view the evidence in the light most favorable to the Commonwealth

and the decision of the trial judge will not be disturbed unless

plainly wrong. Greene v. Commonwealth, 17 Va. App. 606, 608, 440

S.E.2d 138, 139 (1994). Chenevert's inspection of the cargo bay

of the bus with his narcotics dog did not require a search
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warrant because the use of a trained narcotics dog to detect drug

contraband in closed containers does not constitute a "search"

for Fourth Amendment purposes. See United States v. Place, 462

U.S. 696 (1983). K-9 Robbie's "hit" on the U-Haul box provided

Chenevert with probable cause to believe that the box contained a

controlled substance. See Limonja v. Commonwealth, 8 Va. App.

532, 544, 383 S.E.2d 476, 483 (1989) (en banc), cert. denied, 495

U.S. 905 (1990). Because Chenevert had probable cause to search

the container and the container was located in a vehicle, the

"automobile exception," as articulated in Acevedo, empowered
Chenevert to seize and search the box without first obtaining a

warrant.

The fact that the automobile in which the box was found was

a bus instead of a car does not preclude application of the

automobile exception. In California v. Carney, the Supreme Court

held that the automobile exception extends to any vehicle that

has the attribute of mobility and in which a lesser expectation

of privacy exists. 471 U.S. 386 (1985) (holding that the

automobile exception extends to mobile homes if they are not at a

fixed location).

Holding that the marijuana evidence was properly obtained

under the automobile exception, we find the trial court did not

err in admitting the marijuana evidence. Accordingly, we do not

reach the question of whether the marijuana could have been

properly seized under the plain view exception to the warrant

requirement.
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 Chain of Custody

Alvarez asserts that the trial court also erred in admitting

the analysis of the marijuana seized by Chenevert because the

Commonwealth failed to establish an "unbroken chain of custody of

the repackaged marijuana from New Orleans to the chemist who did

the analysis." He further asserts that the Commonwealth could

not rely upon Code § 19.2-187.01 to prove the chain of custody

within the laboratory in which the marijuana was analyzed. We

find Alvarez's arguments unpersuasive and without merit.
As previously noted, on appeal we review the evidence in the

light most favorable to the Commonwealth, granting to it all

reasonable inferences fairly deducible therefrom. Higginbotham

v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975).

Further, the "admissibility of evidence is within the broad

discretion of the trial court," Crews v. Commonwealth, 18 Va.

App. 115, 118-19, 442 S.E.2d 407, 409 (1994), and the defendant

bears the burden of proving the trial court's admission of

evidence constitutes reversible error. Dunn v. Commonwealth, 20

Va. App. 217, 220, 456 S.E.2d 135, 136 (1995).

In order to introduce evidence of the chemical properties of

the marijuana admitted into evidence, the Commonwealth was

required to present "proof of the chain of custody" of the

marijuana, "including `a showing with reasonable certainty that

the item [had] not been altered, substituted, or contaminated

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prior to analysis, in any way that would affect the results of

the analysis.'" Crews, 18 Va. App. at 118-19, 442 S.E.2d at 409

(citations omitted). However, in proving the chain of custody,

the Commonwealth "is not required to exclude every conceivable

possibility of substitution, alteration or tampering.'"

Robertson v. Commonwealth, 12 Va. App. 854, 857, 406 S.E.2d 417,

419 (1991) (citation omitted). The Commonwealth must, instead,

account for every "`vital link in the chain of possession.'"
Robinson v. Commonwealth, 212 Va. 136, 138, 183 S.E.2d 179, 180

(1971) (citation omitted).

Here, the record reflects that the only time the marijuana

seized by Chenevert was not under the direct control of an

officer of the law, until its delivery to an authorized

laboratory agent, was during its shipment from New Orleans to

Greensboro. After Wethern delivered the package to Delta

Airlines for shipment to Greensboro, he contacted Moore and

advised him of the flight number, anticipated time of arrival,

and the Delta Airlines shipping number assigned to the package.

Moore was personally present in Greensboro to receive the package

and was in attendance when the package was removed from the

"belly" of the airplane. Upon receiving the package, Moore

opened the sealed package and found that it contained two wheels

and two bricks of marijuana inside a ripped U-Haul box sealed

with evidence tape. We hold this evidence was sufficient to

support the trial court's finding that the vital links in the

chain of custody of the marijuana were established.
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 We also reject Alvarez's additional assertion that, because

the Commonwealth failed to timely file the certificate of

analysis and had to "rely on the testimony of the chemist to

prove the marijuana," it was not entitled to rely on Code

§ 19.2-187.01 to avoid establishing the chain of custody of the

marijuana within the laboratory.

Code § 19.2-187.01 provides that a certificate of analysis

from any authorized laboratory is prima facie evidence of the

laboratory's custody of the evidence. Unlike Code § 19.2-187,

§ 19.2-187.01 does not require filing of the certificate seven

days prior to trial as a prerequisite to admission for purposes

of proving custody within the laboratory. Further, Code

§ 19.2-187.01 specifically provides that
[a] report of analysis duly attested by the
person performing such analysis or
examination in any [authorized] laboratory
. . . shall be prima facie evidence in a
criminal or civil proceeding as to the
custody of the material described therein
from the time such material is received by an
authorized agent of such laboratory until
such material is released subsequent to such
analysis or examination.

Here, the authorized agent attested to the analysis of the

marijuana introduced into evidence. Therefore, the certificate

of analysis was admissible to prove the chain of custody within

the laboratory. Holding that the evidence was sufficient to

prove the chain of custody and that the certificate of analysis

was properly admitted to prove the chain of custody within the

laboratory, we hold the trial court did not err in admitting

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analysis of the marijuana seized by Chenevert.

Accordingly, holding that the marijuana evidence was

properly obtained under the automobile exception to the warrant

requirement and that the evidence was sufficient to sustain the

trial court's finding that a proper chain of custody was

established, we affirm.

Affirmed.

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