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 
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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.