Megel v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Annunziata and Senior Judge Coleman
Argued by teleconference

MICHAEL MEGEL
OPINION BY
v. Record No. 1480-98-4 JUDGE ROSEMARIE ANNUNZIATA
MARCH 19, 2002
COMMONWEALTH OF VIRGINIA

UPON A REMAND FROM THE SUPREME COURT OF VIRGINIA

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Leslie M. Alden, Judge

Marvin D. Miller (Law Offices of Marvin
D. Miller, on brief), for appellant.

John H. McLees, Jr., Senior Assistant
Attorney General (Mark L. Earley, Attorney
General, on brief), for appellee.

This matter comes before the Court on remand from the

Supreme Court of Virginia. Megel v. Commonwealth, 262 Va. 531,

537, 551 S.E.2d 638, 642 (2001). Michael Megel was indicted in

the Circuit Court of Fairfax County for possession of firearms

by a convicted felon, in violation of Code § 18.2-308.2. He

filed a motion to suppress the evidence of the firearms, found

in a warrantless search of his home. Denying the motion, the

trial judge ruled that the search was lawful because (i) Megel

had no reasonable expectation of privacy in his home while he

was in the electronic incarceration program and (ii), in

addition, "Megel consented to the officer's request to search,
thus, obviating the need for a warrant." Megel was thereafter

convicted of the charged offense in a trial by jury and

sentenced by the trial court to twelve months in jail, in

accordance with the jury's verdict.

Megel appealed the conviction to this Court. In his

petition for appeal, Megel presented the following four

questions:

1. Is participation in an electronic home
detention program a per se waiver of Fourth
Amendment rights of privacy in the home one
shares with others?

2. Can a court deny the defense access to
exculpatory evidence indicating perjury on
the part of a key prosecution witness?

3. Can a court quash a defense subpoena
duces tecum for exculpatory evidence on
which the defense wishes to rely to
establish perjury on the part of a key
prosecution witness without the court first
reviewing the information at issue so that
it knows for itself what is in controversy?

4. Is the defense entitled to its theory of
the case instructions in its words so long
as the instructions are consistent with the
facts and the law?

We granted an appeal on Questions 1, 2 and 3.

A panel of the Court, with one judge dissenting, affirmed

the judgment, and held that Megel had no reasonable expectation

of privacy in his home while in the electronic incarceration

program. Megel v. Commonwealth, 31 Va. App. 414, 524 S.E.2d 139

(2000). On rehearing en banc, the full Court of Appeals

affirmed the conviction for the reasons stated in the panel

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opinion. Megel v. Commonwealth, 33 Va. App. 648, 536 S.E.2d 451

(2000) (en banc). The Supreme Court reversed the conviction,

annulled the judgment of the Court of Appeals, and remanded the

matter to this Court for consideration of the issue of consent.

Megel, 262 Va. at 537, 551 S.E.2d at 642. "Although [the

Supreme Court] question[ed] whether Megel raised [the issue of

consent] before the Court of Appeals, [the Supreme Court left]

that determination to the Court of Appeals." Id. We hold that

Megel's appeal on this issue is procedurally barred.

On appeal, we will consider "[o]nly those arguments

presented in the petition for appeal and granted by this

Court . . . ." Alexander v. Commonwealth, 28 Va. App. 771, 776,

508 S.E.2d 912, 914, aff'd on reh'g en banc, 30 Va. App. 152,

515 S.E.2d 808 (1999); see Cruz v. Commonwealth, 12 Va. App.

661, 664 n.1, 406 S.E.2d 406, 407 n.1 (1991). Rule 5A:12(c)

specifically provides that "[o]nly questions presented in the

petition for appeal will be noticed by the Court of Appeals."

See also Rule 5A:20(c). Although Megel argued the issue of

consent in his petition for appeal, he failed to include the

issue of consent in the questions he presented on appeal. None

of the questions presented in the petition for appeal challenged

the trial judge's finding that Megel voluntarily consented to

the search in question.

Because Megel failed to raise the issue of consent as a

question presented in his petition for appeal, his challenge to

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the trial judge's finding that he consented to the search is

procedurally barred. We accordingly affirm his conviction.

Affirmed.

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 Tuesday 31st

October, 2000.

Michael Megel, Appellant,

against Record No. 1480-98-4
Circuit Court No. CR-93115

Commonwealth of Virginia, Appellee.

Upon a Rehearing En Banc

Before Chief Judge Fitzpatrick, Judges Benton, Willis, Elder,
Bray, Annunziata, Bumgardner, Frank, Humphreys and Clements

Marvin D. Miller (Law Offices of
Marvin D. Miller, on briefs), for
appellant.

John H. McLees, Jr., Senior Assistant
Attorney General (Mark L. Earley,
Attorney General, on brief), for
appellee.

By published opinion dated February 1, 2000, a divided

panel of this Court affirmed the judgment of the trial court.

We stayed the mandate of that decision and granted rehearing en

banc.

Upon rehearing en banc, it is ordered that the stay of

the February 1, 2000 mandate is lifted, and the judgment of the

trial court is affirmed for the reasons set forth in the

majority panel opinion.

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 Judge Benton dissents for the reasons set forth in the

panel dissent.

It is ordered that the trial court allow counsel for

the appellant an additional fee of $200 for services rendered

the appellant on the rehearing portion of this appeal, in

addition to counsel's costs and necessary direct out-of-pocket

expenses. This amount shall be added to the costs due the

Commonwealth in the February 1, 2000 mandate.

This order shall be published and certified to the

trial court.

A Copy,

Teste:

Cynthia L. McCoy, Clerk

By:

Deputy Clerk

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 Tuesday 28th

March, 2000.

Michael Megel, Appellant,

against Record No. 1480-98-4
Circuit Court No. CR-93115

Commonwealth of Virginia, Appellee.

Upon a Petition for Rehearing En Banc

Before Chief Judge Fitzpatrick, Judges Benton, Coleman, Willis,
Elder, Bray, Annunziata, Bumgardner, Lemons and Frank

On February 15, 2000 came the appellant, by court-

appointed counsel, and filed a petition praying that the Court

set aside the judgment rendered herein on February 1, 2000, and

grant a rehearing en banc thereof.

On consideration whereof, the petition for rehearing

en banc is granted, the mandate entered herein on February 1,

2000 is stayed pending the decision of the Court en banc, and

the appeal is reinstated on the docket of this Court.

The parties shall file briefs in compliance with Rule

5A:35. The appellant shall attach as an addendum to the opening

brief upon rehearing en banc a copy of the opinion previously

rendered by

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the Court in this matter. It is further ordered that the

appellant shall file with the clerk of this Court ten additional

copies of the appendix previously filed in this case.

A Copy,

Teste:

Cynthia L. McCoy, Clerk

By:

Deputy Clerk

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 COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Annunziata and Senior Judge Duff
Argued at Alexandria, Virginia

MICHAEL MEGEL
OPINION BY
v. Record No. 1480-98-4 JUDGE CHARLES H. DUFF
FEBRUARY 1, 2000
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Leslie M. Alden, Judge

Marvin D. Miller (Law Office of Marvin D.
Miller, on briefs), for appellant.

(Mark L. Earley, Attorney General; John H.
McLees, Jr., Assistant Attorney General, on
brief), for appellee.

Michael Megel, appellant, was convicted by a jury of

possessing a firearm after having been convicted of a felony and

was sentenced to serve twelve months in jail.

On appeal, appellant contends the trial court erred in

denying his motion to suppress evidence seized by the police

from his home without a warrant while he was serving a sentence

in the Electronic Incarceration Program (EIP). Appellant also

contends the Commonwealth unlawfully denied him access to

psychiatric records which he could have used to impeach a

Commonwealth's witness. He further contends the trial court

should have reviewed the psychiatric records before denying his

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post-trial request for a subpoena duces tecum to obtain the

documents. Finding no error, we affirm.

FACTS 1

On October 22, 1996, the Fairfax County General District

Court found appellant guilty of unlawful entry. Appellant

received a twelve month jail sentence with six months suspended

upon the condition that he remain of good behavior. The

conviction order provided that appellant's sentence was to be

served through "electronic incarceration."

Appellant entered the EIP program on February 21, 1997. He

executed a written agreement to follow certain restrictions as a

condition of being incarcerated in his home. Among these rules

were the requirements that appellant submit to random urine

tests, continuously wear a monitoring device on his ankle,

1
After the petition for appeal was granted in this case,
several transcripts (a partial transcript dated February 9, 1998
and transcripts of hearings held on November 5, 1997 and on
January 12, 1998) were forwarded to this Court from the clerk's
office of Fairfax County Circuit Court. "'After the record has
been transmitted to this Court pursuant to [the Rules of Court]
and an appeal has been granted, the record on appeal cannot be
enlarged except by our award of a writ of certiorari under Code
§ 8.01-673.'" Watkins v. Commonwealth, 26 Va. App. 335, 341,
494 S.E.2d 859, 862 (1998) (quoting Godfrey v. Commonwealth, 227
Va. 460, 465, 317 S.E.2d 781, 784 (1984)). Appellant did not
request, nor did we issue, a writ of certiorari to compel the
transcripts to be forwarded to this Court. Accordingly, we do
not consider them, despite their inclusion in the appendix.

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refrain from possessing weapons or intoxicating substances, and

be subject to random, unannounced home visits by the sheriff. 2

Acting upon an anonymous tip that appellant had a large bag

of cocaine at his residence, Fairfax County Deputy Sheriff Ron

Kidwell and Detectives Dan Janickey and Jule Longerbeam of the

Fairfax County Police went to appellant's home on July 22, 1997.

Janickey and Longerbeam were wearing civilian clothing, and

Kidwell was in uniform. The officers did not possess a warrant

to search appellant's home.

Kidwell knocked on the door and Veronica Barnick,

appellant's girlfriend, answered. Kidwell asked for appellant,

and Barnick admitted the officers to the apartment. Appellant,

Barnick, and their baby were in the living room of the

apartment. Kidwell asked appellant if they could look around.

Appellant said, "go ahead." Janickey and Longerbeam quickly

checked the other rooms in the apartment to ensure that no one

else was present.

Janickey and Longerbeam then returned to appellant and his

girlfriend. Janickey told appellant the police had received

information that appellant might have drugs in the house.

Janickey asked if appellant had any drugs. Appellant said he

did not. Janickey asked appellant if he "would mind" if the

officers looked around the apartment. Appellant replied that

2
The record contains no evidence of a written agreement
permitting the police to search appellant's residence without a

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the officers were "welcome to look around" because they were

"not going to find anything."

Janickey and Longerbeam proceeded to the bedroom. In the

bottom drawer of a dresser, among men's underwear and socks, the

officers found two handguns, a .357 caliber revolver and a .22

caliber revolver. In the dresser on the opposite side of the

room the police found women's undergarments.

The officers asked appellant, a previously convicted felon,

about the guns. Appellant said the .22 caliber belonged to his

girlfriend. Appellant said he had purchased the .357 for $150

as a wedding present for someone. Knowing that appellant

previously had been convicted of a felony, Kidwell began to

laugh. Appellant then became nervous and upset. Contrary to

his earlier statement, appellant said his girlfriend had

purchased the .357 caliber as a wedding present for someone.

The officers testified at the suppression hearing that they

obtained appellant's verbal consent to search the home.

Appellant denied consenting to the search but believed he was

required to permit the sheriff to search his home during any

home visit.

At trial, the Commonwealth called Barnick as a witness.

Barnick testified that both of the guns found in the apartment

belonged to appellant. She said he had owned one of them for

almost a year and the other for only a few days prior to the

warrant during his participation in the EIP.
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search. Barnick admitted she initially told the police the guns

were hers because appellant had advised her to do so. During

cross-examination, Barnick denied that she was receiving care at

a mental health facility called Woodburn, that she had ever been

prescribed any medications through Woodburn, and that she was

then on medication. Although she and appellant were no longer

living together at the time of appellant's trial, she spent

holidays with appellant's parents. She said that custody of the

child she and appellant shared had "never been an issue."

During her rebuttal testimony, Barnick admitted she had met with

appellant's attorney a week earlier in preparation for

appellant's trial.

ANALYSIS

The Suppression Ruling

The trial court denied appellant's motion to suppress,

finding that appellant retained no expectation of privacy in his

home while he was serving his sentence in the EIP. In its

letter opinion denying the motion, the trial court further found

that appellant consented to the search, "thus obviating the need

for a warrant."

In reviewing a trial court's ruling on a motion to

suppress, we view the evidence in the light most favorable to

the prevailing party, the Commonwealth in this instance. See

Greene v. Commonwealth, 17 Va. App. 606, 608, 440 S.E.2d 138,

139 (1994). "In performing such analysis, we are bound by the

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trial court's findings of historical fact unless 'plainly wrong'

or without evidence to support them[,] and we give due weight to

the inferences drawn from those facts by resident judges and

local law enforcement officers." McGee v. Commonwealth, 25 Va.

App. 193, 198, 487 S.E.2d 259, 261 (1997) (en banc).

The Fourth Amendment to the Constitution of the United

States protects "[t]he right of the people to be secure in their

persons, houses, papers, and effects, against unreasonable

searches and seizures . . . ." U.S. Const. amend IV. "[T]he

Fourth Amendment protects people, not places." Katz v. United

States, 389 U.S. 347, 351 (1967).

But the extent to which the Fourth Amendment
protects people may depend upon where those
people are. . . . [The] "capacity to claim
the protection of the Fourth Amendment
depends . . . upon whether the person who
claims the protection of the Amendment has a
legitimate expectation of privacy in the
invaded place."

Minnesota v. Carter, 525 U.S. 83, 88 (1998) (quoting Rakas v.

Illinois, 439 U.S. 128, 143 (1978)).

A court must determine whether the
individual maintains a legitimate
expectation of privacy in the object or
premises to be searched, which involves a
two-part inquiry. First, we must determine
whether the individual has manifested "a
subjective expectation of privacy" in the
object of the challenged search. This
inquiry is a factual determination to which
we must give deference on appeal. Second,
we must determine whether the expectation of
privacy is objectively reasonable, one that

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 society is willing to recognize as
legitimate. This is a legal determination,
requiring no deference on review.

Johnson v. Commonwealth, 26 Va. App. 674, 683-84, 496 S.E.2d

143, 148 (1998). But see Smith v. Maryland, 442 U.S. 735, 741

n.5 (1979) (noting that "where an individual's subjective

expectations ha[ve] been 'conditioned' by influences alien to

well-recognized Fourth Amendment freedoms, those subjective

expectations obviously c[an] play no meaningful role in

ascertaining what the scope of Fourth Amendment protection

[is]").

First, we consider whether appellant manifested a

subjective expectation of privacy in his home during his

participation in the EIP. 3 The trial court found as a fact that,

based upon appellant's testimony at the suppression hearing,

appellant believed he was required to permit the police to

search his home at any time police officers arrived for a home

visit. Indeed, appellant's apparent willingness to allow the

officers to search his home supports this conclusion. We are

bound to give deference to this finding of fact. See Johnson,

26 Va. App. at 684, 496 S.E.2d at 148.

3
In his brief, appellant cites numerous cases discussing
the validity of a waiver of the right to be free from
unreasonable searches and seizures. This line of argument
presumes a finding that appellant had a reasonable expectation
of privacy in his home at the time of the search. Absent such
an expectation, the question of waiver is irrelevant.

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 Second, assuming appellant manifested a subjective

expectation of privacy, we determine whether society is prepared

to recognize as reasonable an expectation of privacy in the home

of a participant in a program such as the EIP. Through the EIP,

a person who has been convicted of a criminal offense, under

certain circumstances, may be permitted to serve his or her

sentence through "home/electronic incarceration" as administered

by a supervising authority such as the sheriff's department. 4

Code § 53.1-131.2(C) provides that "if the offender violates any

provision of the terms of the home/electronic incarceration

agreement, the offender may have the assignment revoked and, if

revoked, shall be held in the jail facility to which he was

originally sentenced." If an EIP participant, "without proper

authority or just cause, leaves his place of home/electronic

incarceration, the area to which he has been assigned to work or

attend education or other rehabilitative programs, or the

vehicle or route of travel involved in his going to or returning

from such place," he or she is guilty of a Class 2 misdemeanor.

Code § 53.1-131.2(E).

Among the rules of participation in the EIP, which

appellant acknowledged in writing, was the condition that

4
Code § 53.1-131.2 further provides for participation in
EIP for those accused of crimes pending trial. See Code
§ 53.1-131.2. In deciding the present case, we do not consider
whether a participant in EIP who does not stand convicted and
sentenced for a crime has an expectation of privacy in his place
of confinement.

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members of the sheriff's department would be permitted to visit

the home where appellant was confined. Appellant was further

advised of the numerous prohibited acts which could result in

his removal from the program or disciplinary action. If

appellant disobeyed the rules of the EIP, he was subject to

being incarcerated in jail instead of at home.

Under such circumstances, a participant in the EIP is far

more restricted than one on probation or parole. A probationer

or parolee generally enjoys freedom of movement; an EIP

participant enjoys no such right. Thus, participation in the

EIP is more analogous to a person serving time in a jail or

prison. The participant's home is the functional equivalent of

a jail or prison cell. In Hudson v. Palmer, 468 U.S. 517

(1984), the United States Supreme Court considered whether an

inmate in a penal institution has a right to privacy in his

prison cell entitling him to Fourth Amendment protection against

unreasonable searches. The Court stated:

[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,

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 under our system of justice, deterrence and
retribution are factors in addition to
correction.

Id. at 525 (citations omitted). The Court 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.

At the time of the challenged search, appellant was serving

a sentence, albeit in his home, following the conviction of a

crime. Appellant was subject to the rules and regulations of

the EIP. If he failed to abide by those conditions, he was

subject to further disciplinary action, removal from the

program, and incarceration in jail. We find that, for purposes

of the Fourth Amendment, appellant's home was the functional

equivalent of a jail cell. As one author has stated,

[E]lectronic incarceration appears to be
commensurate with the metaphor of "a man's
home is his prison," with the quantum leap
of transposing inmates' cells from a
correctional facility to their homes. The
net effect, therefore, would be that
offenders who are serving part or all of
their jail sentence at home would be
afforded absolutely no fourth amendment
constitutional protection from having their
homes or their persons searched without a
search warrant.

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Alexander M. Esteves, Note, Changing of the Guard: The Future of

Confinement Alternatives in Massachusetts, 17 New Eng. J. on

Crim. & Civ. Confinement 133, 167 (1991) (footnote omitted).

At the time of the search, appellant had no reasonable

expectation of privacy in the home, which was serving as his

jail cell. 5 Therefore, the search of appellant's home carried

with it no Fourth Amendment implications, and the trial judge

did not err in denying the motion to suppress. In light of this

conclusion, we need not consider whether appellant voluntarily

consented to the search.

Disclosure of Barnick's Psychiatric Records

The trial court entered a pretrial order requiring the

Commonwealth to provide appellant with exculpatory evidence. 6

5
There exist varying degrees of restraint of freedom on an
individual who has been convicted of a crime, "ranging from
solitary confinement in a maximum-security facility to a few
hours of mandatory community service." Griffin v. Wisconsin,
483 U.S. 868, 874 (1987) (upholding Wisconsin administrative
regulation allowing probation officers to search probationers'
homes without warrant as long as probation officer obtains
supervisor's approval and has "reasonable grounds" for believing
contraband is on premises). Persons whose sentences are
suspended or who are on probation enjoy less freedom than those
who have not been convicted of committing a crime. See, e.g.,
Anderson v. Commonwealth, 25 Va. App. 565, 490 S.E.2d 274 (1997)
(upholding validity of one-year waiver of Fourth Amendment
rights as condition of suspended sentence), aff'd en banc, 26
Va. App. 535, 495 S.E.2d 547, aff'd, 256 Va. 580, 507 S.E.2d 339
(1998). By analogy, a person under home incarceration enjoys
less rights than those no longer serving a sentence of
incarceration.
6
The order required the Commonwealth to provide the defense
with "any statements which the Commonwealth alleges were made by
the accused which relate to the charges pending before this

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After trial, appellant filed a request for a subpoena duces

tecum to obtain from Woodburn the records of Barnick's

psychiatric treatment, as well as information regarding

medications prescribed for her through the facility for the

preceding ten years. Appellant contended, as he does on appeal,

that the requested information should have been revealed by the

Commonwealth before trial and that he was entitled to use the

information to demonstrate that Barnick had committed perjury at

trial. The trial court granted a motion to quash the subpoena

duces tecum. Appellant subsequently filed a motion to vacate

his conviction based upon the Commonwealth's failure to disclose

Barnick's psychiatric records. The trial court denied this

motion also.

We first address the aspect of appellant's argument

pertaining to the Commonwealth's failure to provide the defense

with Barnick's psychiatric records prior to trial. It is

unquestioned that "[t]he Commonwealth is required to provide a

defendant exculpatory evidence, including evidence which

impeaches the credibility of a prosecution witness." Goins v.

Court; any scientific tests and/or reports in the possession,
custody or control of the Commonwealth which relate to the
offense pending before this Court whether inculpatory or
exculpatory; and any and all such other discoverable evidence
required by Rule 3A:11 of the Rules of the Supreme Court of
Virginia, as well as, exculpatory evidence indicating lack of
guilt or mitigating degree of culpability and relating to
questions of punishment[,] as well as evidence or leads to
evidence on these matters including that which could be of use

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Commonwealth, 251 Va. 442, 456, 470 S.E.2d 114, 124 (1996). In

fulfilling this disclosure obligation, the "prosecutor has a

duty to learn of any favorable evidence known to the others

acting on the government's behalf in the case, including the

police." Kyles v. Whitley, 514 U.S. 419, 437 (1995). See also

Williams v. Commonwealth, 16 Va. App. 928, 932, 434 S.E.2d 343,

346 (1993) ("[o]ne accused of a criminal offense may obtain

exculpatory evidence known to the prosecution"). Moreover,

[i]n order for a defendant to establish a
Brady [v. Maryland, 373 U.S. 83 (1963),]
violation, he must demonstrate that the
undisclosed evidence was exculpatory and
material either to the issue of guilt or to
the issue of punishment. The mere
possibility that "undisclosed information
might have helped the defense, or might have
affected the outcome of the trial, does not
establish 'materiality' in the
constitutional sense."

Goins, 251 Va. at 456, 470 S.E.2d at 124 (citations omitted).

We find nothing in the record to suggest that the

Commonwealth or its agents had pretrial knowledge that Barnick

had received psychiatric treatment. Indeed, defense counsel

first broached the subject of Woodburn in cross-examination of

Barnick. The Commonwealth could not have been expected to

produce records of which none of its agents had knowledge.

Furthermore, the record does not show that Barnick's

psychiatric records would have proven that she testified

to the defense in the impeachment of prosecution witnesses as
such is known or can become known to the Commonwealth . . . ."

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untruthfully, that she harbored a bias against appellant, or

that she possessed a motive to fabricate her testimony.

Considering all of the evidence produced at trial against

appellant, we cannot say the results of the trial would have

been different had the Commonwealth provided appellant with

Barnick's psychiatric records.

To obtain information through a subpoena duces tecum,

appellant was required to show that the requested documents were

"material to the proceedings." Rule 3A:12(b). A "trial court's

refusal to issue a subpoena duces tecum . . . is not reversible

error absent a showing of prejudice." Gibbs v. Commonwealth, 16

Va. App. 697, 701, 432 S.E.2d 514, 516 (1993).

When appellant filed his subpoena duces tecum request, all

that remained was for the trial court to sentence appellant.

Barnick's credibility was no longer at issue. Thus, Barnick's

psychiatric records were not material to the proceedings then

pending in the trial court. Moreover, because the records would

not have produced a different outcome at trial, as noted above,

appellant has demonstrated no prejudice from the denial of his

request for a subpoena duces tecum. Accordingly, we find no

reversible error in the trial court's decision.

Finally, we must determine whether Barnick's psychiatric

records qualified as after-discovered evidence necessitating a

new trial.

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 "Motions for new trials based on
after-discovered evidence are addressed to
the sound discretion of the trial judge, are
not looked upon with favor, are considered
with special care and caution, and are
awarded with great reluctance. . . . The
applicant bears the burden to establish that
the evidence (1) appears to have been
discovered subsequent to trial; (2) could
not have been secured for use at the trial
in the exercise of reasonable diligence by
the movant; (3) is not merely cumulative,
corroborative or collateral; and (4) is
material, and such as should produce
opposite results on the merits at another
trial."

Hopkins v. Commonwealth, 20 Va. App. 242, 249, 456 S.E.2d 147,

150 (1995) (en banc) (citation omitted).

Appellant has failed to prove that Barnick's psychiatric

records satisfy three of the four prongs of this test. Barnick

was appellant's former girlfriend, and she had met with defense

counsel in preparation for trial. In fact, it was defense

counsel who first mentioned the subject at trial, questioning

Barnick specifically about Woodburn. The trial court found that

Barnick was subpoenaed as a witness for the Commonwealth prior

to trial. Therefore, appellant should have anticipated her

appearance as a witness.

Considering these facts and circumstances, Barnick's prior

treatment at Woodburn does not appear to have been discovered

after trial. In any event, however, the exercise of reasonable

diligence by appellant would have revealed this information. As

earlier noted, earlier access to Barnick's records would not

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have produced an opposite result at another trial. Accordingly,

the trial court did not err in refusing to set aside the verdict

on the basis of after-discovered evidence.

For the foregoing reasons, we affirm appellant's

conviction.

Affirmed.

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 Benton, J., dissenting.

I.

"The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches and

seizures, shall not be violated." U.S. Const. amend IV. In

applying this amendment, the United States Supreme Court has

drawn a firm line around houses and recognized as "a 'basic

principle of Fourth Amendment law[,]' that searches and seizures

inside a home without a warrant are presumptively unreasonable."

Welsh v. Wisconsin, 466 U.S. 740, 748-49 (1984) (citations and

footnote omitted).

The Fourth Amendment protects the
individual's privacy in a variety of
settings. In none is the zone of privacy
more clearly defined than when bounded by
the unambiguous physical dimensions of an
individual's home - a zone that finds its
roots in clear and specific constitutional
terms: "The right of the people to be secure
in their . . . houses . . . shall not be
violated."

Payton v. New York, 445 U.S. 573, 589-90 (1980) (citation

omitted). "In a long line of cases, [the] Court has stressed

that 'searches conducted outside the judicial process, without

prior approval by judge or magistrate, are per se unreasonable

under the Fourth Amendment -- subject only to a few specifically

established and well delineated exceptions.'" Thompson v.

Louisiana, 469 U.S. 17, 19-20 (1984) (citation omitted).

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 The burden is on the Commonwealth to establish an exception

to the warrant requirement. See United States v. Jeffers, 342

U.S. 48, 51 (1951); Walls v. Commonwealth, 2 Va. App. 639, 645,

347 S.E.2d 175, 178 (1986). Moreover, in discharging its

obligation to prove one of the specific, well delineated

exceptions, the Commonwealth "bear[s] a heavy burden." Welsh,

466 U.S. at 749-50. In my judgment, on this record, the

Commonwealth failed to meet its "heavy burden."

(A)

When the search occurred, Michael Megel had been convicted

by a judge of the general district court and ordered to serve

six months at home under the Fairfax County Community

Corrections Program. Code § 53.1-131.2(A) provides that the

judge may "assign the offender to a home/electronic

incarceration program as a condition of probation." (Emphasis

added). The written agreement that Megel signed when he entered

the program included a provision that the "Sheriff's Office

staff will conduct home visits." Megel signed no other document

giving the Sheriff's office staff or any other agent of the

Commonwealth the right to search his residence. In addition,

nothing in the rules and conditions of the program that Megel

signed purported to be a waiver of Megel's Fourth Amendment

rights.

Based upon its assertion that Megel's home was a "home jail

cell," the Commonwealth argues on brief "that society would not

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accept as reasonable any expectation of privacy [Megel might

assert] from home searches by the sheriff." In support of that

argument, the Commonwealth cites Anderson v. Commonwealth, 256

Va. 580, 585-86, 507 S.E.2d 339, 341-42 (1998), and asserts that

"[b]ecause a court can reasonably condition probation on a

waiver of Fourth Amendment rights, a fortiori a jailor can

reasonably condition home incarceration on such a waiver as

well." The rules and conditions of the program, however, did

not condition entry into the program on Megel's waiver of his

Fourth Amendment rights. Thus, Anderson, which is premised upon

the existence of a "waiver . . . requiring [the accused] to

submit his person and property to search and seizure at any time

by any law enforcement officer with or without a warrant," 256

Va. at 586, 507 S.E.2d at 342, has no bearing on the resolution

of this case.

The classic description of an effective waiver of a

constitutional right is the "'intentional relinquishment or

abandonment of a known right or privilege.'" College Savings

Bank v. Fla. Expense Bd., 119 S. Ct. 2219, 2229 (1999) (quoting

Johnson v. Zerbst, 304 U.S. 458, 464 (1938)). Moreover, the

following principles are well established:

Courts indulge every reasonable presumption
against a waiver of fundamental
constitutional rights. The burden rests
upon the party relying on a waiver to prove
the essentials of such waiver by clear,
precise and unequivocal evidence. The
evidence must not leave the matter to mere

- 27 -
 inference or conjecture but must be certain
in every particular.

White v. Commonwealth, 214 Va. 559, 560, 203 S.E.2d 443, 444

(1974) (citation omitted).

The document Megel signed contains no language that

reasonably can be construed as either a consent to a search or

seizure of his property or a waiver of his Fourth Amendment

rights. "In Virginia, one does not relinquish constitutional

rights by mere silence; there must be an affirmative act."

Pittman v. Commonwealth, 10 Va. App. 693, 695, 395 S.E.2d 473,

474 (1990). Indeed, the trial judge made no finding that the

rules and conditions or any other document Megel signed

contained a waiver. Contrary to well established principles,

the Commonwealth would have us presume a waiver. I reject that

invitation.

The rules and conditions Megel signed state simply that the

"Sheriff's Office staff will conduct home visits." No

reasonable interpretation of that proviso gives rise to a waiver

of Megel's Fourth Amendment rights. Even if that proviso is

construed to permit the Sheriff's staff to "look around" to

ensure their safety, well established rules delimit the scope of

that type of activity.

[A] protective sweep of a building without a
warrant may be justified by exigent
circumstances if the officers reasonably
believe that there might be other persons on
the premises who could pose a danger to
them. . . . However, to excuse this

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 departure from the usual requirement of a
warrant, the executing officers must be able
to "point to specific and articulable facts"
supporting their belief that other dangerous
persons may be in the building or elsewhere
on the premises.

United States v. Whitten, 706 F.2d 1000, 1014 (9th Cir. 1983)

(citation omitted). Furthermore, the Supreme Court has limited

the degree of the intrusion.

We should emphasize that . . . a protective
sweep, aimed at protecting the . . .
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.

Maryland v. Buie, 494 U.S. 325, 335-36 (1990) (footnote

omitted); see also Arizona v. Hicks, 480 U.S. 321, 325 (1987)

(noting that the officers "taking action, unrelated to the

objectives of the authorized intrusion, which exposed to view

concealed portions of the apartment or its contents, did produce

a new invasion of respondent's privacy unjustified by the

exigent circumstance that validated the entry"). Thus, even if

the Sheriff's staff could "look around" under the guise of a

protective sweep, that interpretation of the agreement Megel

signed did not constitute a waiver of Megel's Fourth Amendment

rights against a search of his home.

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 (B)

The majority holds, instead, that Megel's "home is the

functional equivalent of his jail or prison cell." In my

judgment, neither the circumstances of home detention nor the

law governing Fourth Amendment expectations of privacy support

the majority's analysis. That Megel was subject to the rules of

the Community Corrections Program and could be returned to jail

if he violated those rules does not establish that his home was

the functional equivalent of jail. Indeed, those special rules

and conditions and the threat that Megel could be returned to

jail prove by their very nature that Megel's home was not

functionally equivalent to jail.

Although Megel was barred from using alcohol or drugs, the

rules contained few other restrictions upon his conduct at home.

Megel resided at home with a female friend and his child. He

was permitted to shop for food and necessities for two hours

each week, go to work, and go to church. He could receive

unlimited visitors, make an unlimited number of telephone calls,

and generally conduct his life while at home without supervision

or restrictions, except for the possibility of unannounced

visits by the Sheriff's staff. Given the circumstances under

which Megel lawfully resided in his home, the majority's

assertion that Megel's home was the functional equivalent of a

jail or prison cell defies logic.

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 Furthermore, the institutional security concerns that are

inextricably bound to the definition and identity of prison and

jail are not applicable in the program. The Fourth Amendment

rights of prison and jail inmates are suspended because of the

need within the institutional environment "to preserve internal

order and discipline and to maintain institutional security."

Bell v. Wolfish, 441 U.S. 520, 547 (1979). The Supreme Court

has noted that, because of the peculiar exigencies of the

confined prison populations, it "strike[s] the balance in favor

of institutional security, which . . . is 'central to all other

correction goals.'" Hudson v. Palmer, 468 U.S. 517, 527 (1984).

Those security concerns, however, are not the same outside

prisons and jails.

Even the Commonwealth concedes on brief that "[i]t is true

that, in Hudson, . . . the Supreme Court, in holding that

prisoners had no reasonable expectation of privacy in their

prison cells, focused on the societal interest in institutional

security." When the decision was made to allow Megel to

participate in the home incarceration program, the Commonwealth

dispensed "with the close and continual surveillance . . .

required to ensure institutional security and internal order."

Hudson, 468 U.S. at 527-28. Few, if any, of the realities of

prison and jail confinement that give rise to a diminished

expectation of privacy naturally exist in home detention. "It

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is obvious that a jail shares none of the attributes of privacy

of a home." Lanza v. New York, 370 U.S. 139, 143 (1962).

Even if, by signing the rules and conditions governing home

incarceration, Megel's reasonable expectation of privacy "would

be of a diminished scope," Bell, 441 U.S. at 557, nothing in

those rules and conditions can be construed to grant the

government the extraordinary right to search Megel's home

without a warrant. "[C]onvicted persons do not forfeit all

constitutional protections by reason of their conviction." Id.

at 545. In short, the limitations placed on Megel's freedom of

movement fail to establish that his home was the functional

equivalent of a jail cell, and the Fourth Amendment

jurisprudence governing expectations of privacy in jails and

prisons is not implicated in home detention programs.

(C)

The Commonwealth also attempts to justify the search of

Megel's apartment based on consent. However, "'[c]onsent to a

search . . . must be unequivocal, specific and intelligently

given . . . and it is not lightly to be inferred.'" Elliotte v.

Commonwealth, 7 Va. App. 234, 239, 372 S.E.2d 416, 419 (1988)

(citation omitted). Whenever the Commonwealth alleges that a

search was consensual, "[t]he [Commonwealth] . . . bears the

burden of establishing consent and this burden is heavier where

the alleged consent is based on an implication." Walls, 2 Va.

App. at 645, 347 S.E.2d at 178. Moreover, the Commonwealth's

- 32 -
"burden . . . is not satisfied by showing a mere submission to a

claim of lawful authority." Florida v. Royer, 460 U.S. 491, 497

(1983); see also Bumper v. North Carolina, 391 U.S. 543, 548-49

(1968).

The evidence proved that a deputy sheriff and two

detectives went to Megel's residence. One of the detectives

testified that the following occurred when Megel opened his

door:

Deputy Kidwell told [Megel] that he was
going to check the house, said that they had
some information, that they wanted to look
around. I then identified myself as a
police officer . . . and then I went to the
back room. It was a one bedroom apartment.
I went to do a cursory check of the back
bedroom and came back and then spoke to
[Megel] again. . . .

I told [Megel] that, basically, why we were
there. I told him I was with the narcotics
section in Fairfax County Police and we
received some information that he might have
some drugs in the house. Did he have
anything? And he said, no, [he] did not.
And I asked him again, are you sure that
there is nothing in here illegal, no drugs.
He said, no, go ahead and look around. And
that is when myself and Detective Longerbeam
looked around.

The trial judge found that "Megel's own testimony indicated

that he believed he was required to permit the sheriff to search

his home at any time the sheriff came for a home visit." In

view of Megel's testimony and that of the detective, the trial

judge "conclude[d] that . . . Megel consented to the . . .

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request to search, thus, obviating the need for a warrant."

That conclusion is not supported by the facts or the law.

When the officers entered Megel's apartment they did not

ask his permission to search. The detective testified that the

deputy sheriff "told [Megel] . . . he was going to check the

house." (Emphasis added). The detective then went "into the

back bedroom and [took] a quick look around the apartment, [to]

make sure that it was safe . . . to be in there." The trial

judge's conclusion that Megel believed the officers were

permitted to search whenever they visited vitiates any claim by

the Commonwealth that Megel consented. The prosecution's

"burden of proving that the consent was, in fact, freely and

voluntarily given . . . cannot be discharged by showing no more

than acquiescence to a claim of lawful authority." Bumper, 391

U.S. at 548-49 (footnote omitted). Indeed, where as here,

Megel's subjective belief was also based on the incorrect view

that the officers had a right to search, the Commonwealth's

difficulty is compounded.

For example, if the Government were suddenly
to announce on nationwide television that
all homes henceforth would be subject to
warrantless entry, individuals thereafter
might not in fact entertain any actual
expectation of privacy regarding their
homes, papers, and effects. Similarly, if a
refugee from a totalitarian country, unaware
of this Nation's traditions, erroneously
assumed that police were continuously
monitoring his telephone conversations, a
subjective expectation of privacy regarding
the contents of his calls might be lacking

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 as well. In such circumstances, where an
individual's subjective expectations had
been "conditioned" by influences alien to
well-recognized Fourth Amendment freedoms,
those subjective expectations obviously
could play no meaningful role in
ascertaining what the scope of Fourth
Amendment protection was. In determining
whether a "legitimate expectation of
privacy" existed in such cases, a normative
inquiry would be proper.

Smith v. Maryland, 442 U.S. 735, 740-41 n.5 (1979); see also

United States v. Ladell, 127 F.3d 622, 624 (7th Cir. 1997)

(noting that one of the questions in determining the legitimacy

of consent to search is whether "the person who gave the consent

knew it could be withheld").

Clearly, the officers and Megel believed that Megel's

consent was not required for the officers to search his home

without a warrant. Megel merely acquiesced to the officers'

claim of lawful authority and did so based upon a faulty

premise. Furthermore, Megel said the detective could "look

around" only after the deputy sheriff asserted his authority to

"look around." That is not "unequivocal, specific" consent to

search. Elliotte, 7 Va. App. at 239, 372 S.E.2d at 419. No one

asked for Megel's consent to search, and he gave no consent for

a search.

Because Megel neither consented to the search nor waived

his Fourth Amendment rights, I would reverse the trial judge's

refusal to suppress the evidence that resulted from the

warrantless search of Megel's home.

- 35 -
 "We are not dealing with formalities. The
presence of a search warrant serves a high
function. Absent some grave emergency, the
Fourth Amendment has interposed a magistrate
between the citizen and the police. This
was done not to shield criminals nor to make
the home a safe haven for illegal
activities. It was done so that an
objective mind might weigh the need to
invade that privacy in order to enforce the
law. . . . We cannot be true to that
constitutional requirement and excuse the
absence of a search warrant without a
showing by those who seek exemption from the
constitutional mandate that the exigencies
of the situation made that course
imperative."

Chimel v. California, 395 U.S. 752, 761 (1969) (citation

omitted).

II.

Prior to trial, Megel filed a motion for discovery of

exculpatory evidence, which specifically requested "[t]he

psychiatric records and/or history of all government witnesses."

Although the trial judge ordered the Commonwealth to provide

exculpatory evidence, the Commonwealth failed to produce the

psychiatric records of its witness, Veronica Barnick. At trial,

Barnick testified and lied about her treatment in a psychiatric

facility.

"[T]he suppression by the prosecution of evidence favorable

to an accused upon request violates due process where the

evidence is material either to guilt or to punishment,

irrespective of the good faith or bad faith of the prosecution."

Brady v. Maryland, 373 U.S. 83, 87 (1963). As the Supreme Court

- 36 -
has emphasized, "[t]his . . . means the individual prosecutor

has a duty to learn of any favorable evidence known to the

others acting on the government's behalf in the case." Kyles v.

Whitley, 514 U.S. 419, 437 (1995). Furthermore, the Court has

ruled that "favorable evidence is material, and constitutional

error results from its suppression by the government, 'if there

is a reasonable probability that, had the evidence been

disclosed to the defense, the result of the proceeding would

have been different.'" Id. at 433-34 (quoting United States v.

Bagley, 473 U.S. 667, 682 (1985)). Thus, "[a] 'reasonable

probability' of a different result is accordingly shown when the

Government's evidentiary suppression 'undermines confidence in

the outcome of the trial.'" Kyles, 514 U.S. at 434.

The Commonwealth relied heavily on Barnick's testimony that

the guns were not hers. Her credibility was pivotal to the

Commonwealth's case. The evidence proved, however, that Barnick

initially told a police officer that the guns were hers. In

addition, Megel produced witnesses at trial who testified they

sold the guns to Barnick. The undisclosed psychiatric evidence

was favorable to Megel within the Brady rule because it could

have been used for impeachment purposes. See United States v.

Bagley, 473 U.S. 667, 676 (1985). The failure to produce

impeachment evidence that would have discredited Barnick's

testimony undermines confidence in the outcome of the trial.

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 For these reasons, I would reverse the conviction and

remand for a new trial.

- 38 -