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PRESENT: Carrico, C.J., Lacy, Hassell, Keenan, Koontz, and

Kinser, JJ., and Stephenson, S.J.

MICHAEL L. MEGEL
  OPINION BY
v.  Record No. 002816 SENIOR JUSTICE ROSCOE B. STEPHENSON, JR.
  September 14, 2001
COMMONWEALTH OF VIRGINIA

FROM THE COURT OF APPEALS OF VIRGINIA

In this appeal, we determine whether an accused's home may
be subjected to a warrantless search by police while the accused
is serving a sentence, pursuant to Code   53.1-131.2(A), in the
so-called Electronic Incarceration Program.
I
Michael L. Megel was indicted in the Circuit Court of
Fairfax County for the possession of firearms as a convicted
felon, in violation of Code   18.2-308.2.  The trial court
denied Megel's motion to suppress evidence of firearms found in
a warrantless search of his home.  Thereafter, a jury convicted
Megel of the charged offense and fixed his punishment at 12
months in jail, and the trial court sentenced him in accordance
with the jury's verdict.
Megel appealed the conviction to the Court of Appeals, and
a panel of the Court, with one judge dissenting, affirmed the
judgment.  Megel v. Commonwealth, 31 Va. App. 414, 524 S.E.2d
139 (2000).  On rehearing en banc, the full Court of Appeals
also affirmed the conviction for the reasons stated in the panel
opinion.  Megel v. Commonwealth, 33 Va. App. 648, 536 S.E.2d 451
(2000).  We awarded Megel this appeal.
II
On October 22, 1996, the General District Court of Fairfax
County convicted Megel of unlawful entry.  The court sentenced
Megel to 12 months in jail, but suspended six months of the
sentence upon the condition that he remain of good behavior.  
The court further ordered Megel to serve the six-month sentence
in his own home as a participant in the Fairfax County Sheriff's
Electronic Incarceration Program (the Program).
Megel entered the Program on February 21, 1997.  At that
time, he executed a written agreement to abide by certain rules
as a condition of his participation in the Program.  These rules
required Megel, among other things, to submit to random urine
tests, continuously wear an electronic monitoring device on his
ankle, refrain from possessing weapons or intoxicating
substances, and subject himself to random, unannounced home
visits by the sheriff.
On July 22, 1997, a deputy sheriff and two county police
detectives, acting upon an anonymous tip that Megel had
narcotics in his home, went to Megel's apartment.  The officers
did not possess a search warrant.
Megel's girlfriend, who lived with Megel and their infant
child, admitted the officers into the apartment.  The deputy
sheriff asked Megel if the officers could "look around" the
apartment, and Megel responded, "[Y]eah[,] go ahead."  The
officers then made a quick inspection of the apartment for their
own safety and determined that no one was hiding in the
apartment and no weapons appeared to be readily available.  The
deputy then told Megel why they were present and asked him if
they could search the apartment for drugs.  Megel said, "[G]o
ahead.  You're not going to find anything.  You're welcome to
look around."
While conducting a search of the apartment, the officers
found two handguns in the bottom of a dresser drawer in a
bedroom.  The drawer also contained men's underwear and socks.
III
The Fourth Amendment to the Federal Constitution provides
that "[t]he right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated."  Therefore, warrantless
searches are per se unreasonable, subject to a few specifically
established and well-delineated exceptions, Thompson v.
Louisiana, 469 U.S. 17, 19-20 (1984), and the Commonwealth has
the heavy burden of establishing an exception to the warrant
requirement.  Welsh v. Wisconsin, 466 U.S. 740, 749-50 (1984).
Whether a person has the right to claim the protection of
the Fourth Amendment depends upon whether the person has a
legitimate expectation of privacy in the place searched.  
Minnesota v. Carter, 525 U.S. 83, 88 (1998); Rakas v. Illinois,
439 U.S. 128, 143 (1978).  This zone of privacy is most clearly
defined when bounded by "the unambiguous physical dimensions of
an individual's home."  Payton v. New York, 445 U.S. 573, 589
(1980).
A
The Commonwealth contends that the search of Megel's home
was reasonable because "as a prisoner he had no reasonable
expectation of privacy there."  The Court of Appeals agreed,
concluding that "participation in the [Program] is more
analogous to a person serving time in a jail or prison" and that
Megel's home "is the functional equivalent of a jail or prison
cell."  Megel, 31 Va. App. at 422, 524 S.E.2d at 143.  In so
concluding, the Court of Appeals relied upon Hudson v. Palmer,
468 U.S. 517 (1984).
In Hudson, the Supreme Court considered whether an inmate
in a penal institution has a right to privacy in his prison
cell, thus affording him Fourth Amendment protection against
unreasonable searches.  The Court stated the following:
[W]hile persons imprisoned for crime enjoy many
protections of the Constitution, it is also clear that
imprisonment carries with it the circumscription or
loss of many significant rights. . . .  These
constraints on inmates, and in some cases the complete
withdrawal of certain rights, are "justified by the
considerations underlying our penal system." . . .  
The curtailment of certain rights is necessary, as a
practical matter, to accommodate a myriad of
"institutional needs and objectives" of prison
facilities, . . . chief among which is internal
security . . . .  Of course, these restrictions or
retractions also serve, incidentally, as reminders
that, under our system of justice, deterrence and
retribution are factors in addition to correction.
468 U.S. at 524 (citations omitted).  The Court then held that

society is not prepared to recognize as legitimate any
subjective expectation of privacy that a prisoner
might have in his prison cell and that, accordingly,
the Fourth Amendment proscription against unreasonable
searches does not apply within the confines of the
prison cell.  The recognition of privacy rights for
prisoners in their individual cells simply cannot be
reconciled with the concept of incarceration and the
needs and objectives of penal institutions.
Id. at 526.
We reject the Court of Appeals' conclusion that Megel's
home is the functional equivalent of a jail or prison cell.  
Although the Program restricts Megel's freedom, he is not a
prisoner in the traditional sense.  Code   53.1-131.2(A), which
authorizes the Program, provides, in pertinent part, that:
Any court having jurisdiction for the trial of a
person charged with a criminal offense . . . may, if
the defendant is convicted and sentenced to
confinement in a state or local correctional facility,
and if it appears to the court that such an offender
is a suitable candidate . . . , assign the offender to
a home/electronic incarceration program as a condition
of probation.
(Emphasis added.)  Thus, Megel was assigned to the Program "as a
condition of probation;" he was not confined with other inmates
in a prison where the needs and objectives of the facility must
be considered.
B
We also reject the Commonwealth's contention that, pursuant
to the terms of the agreement Megel executed, he waived his
Fourth Amendment protection.  Although the agreement gave the
sheriff the right to make random visits to Megel's home, there
is no provision in the agreement that gives the sheriff the
right to fully search Megel's home.
The present case is altogether different from Anderson v.
Commonwealth, 256 Va. 580, 507 S.E.2d 339 (1998), upon which the
Commonwealth relies.  In Anderson, the defendant executed a
written plea agreement whereby he voluntarily and knowingly,
with the advice of counsel, agreed to waive his Fourth Amendment
rights.  Id. at 582, 507 S.E.2d at 340.  Additionally, the
sentencing order stated that the defendant, by waiving his
Fourth Amendment rights, "shall submit his person, place of
residence, and property to search or seizure at any time . . .
with or without a warrant."  Id.  In the present case, no
reasonable interpretation of the agreement gives rise to a
waiver by Megel of his Fourth Amendment rights.
In exercising the right to visit Megel's home, the officers
reasonably could "look around" Megel's apartment to ensure their
safety.  Such an inspection, however, did not justify a full
search of the premises, as was made clear in Maryland v. Buie,
494 U.S. 325, 335-36 (1990), where the Supreme Court stated the
following:
We should emphasize that . . . a protective
sweep, aimed at protecting . . . officers, if
justified by the circumstances, is nevertheless not a
full search of the premises, but may extend only to a
cursory inspection of those spaces where a person may
be found.  The sweep lasts no longer than is necessary
to dispel the reasonable suspicion of danger.
(Footnote omitted.)
IV

A
The Commonwealth further contends that, even if Megel was
entitled to the protection of the Fourth Amendment, the record
supports the trial court's alternative holding that Megel
voluntarily consented to the search.  The Court of Appeals,
however, declined to address this issue in light of its holding
that Megel had no reasonable expectation of privacy.  Megel, 31
Va. App. at 424, 524 S.E.2d at 144.  Although we question
whether Megel raised this issue before the Court of Appeals, we
will leave that determination to the Court of Appeals.
B

In sum, we hold that the Court of Appeals erred in ruling
that, by Megel's entering into the Program, his home became "the
functional equivalent of a jail or prison cell," resulting in
the loss of his Fourth Amendment protection against unreasonable
searches and seizures.  We further hold that Megel did not waive
his Fourth Amendment rights by executing the agreement to enter
the Program.
Accordingly, the judgment of the Court of Appeals will be
reversed and, because the Court declined to consider the issue
of consent and the issue is not before us as an assignment of
error, the case will be remanded to the Court of Appeals for
consideration thereof.
Reversed and remanded.
8

8


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