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. TV. 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, 104 S.Ct. 2091, 2097, 80 L.Ed.2d 732 (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, 100 S.Ct. 1371, 1382, 63 L.Ed.2d 639 (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, 105 S.Ct. 409, 410, 83 L.Ed.2d 246 (1984) (citation omitted).
The burden is on the Commonwealth to establish an exception to the warrant requirement. See United States v. Jeffers, 342 U.S. 48, 51, 72 S.Ct. 93, 95, 96 L.Ed. 59 (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, 104 *429S.Ct. at 2097. 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/eleetronic 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 “Sheriffs Office staff will conduct home visits.” Megel signed no other document giving the Sheriffs 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 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 *430v. Fla. Expense Bd., 527 U.S. 666, —, 119 S.Ct. 2219, 2229, 144 L.Ed.2d 605 (1999) (quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (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 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 “Sheriffs 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 Sheriffs 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 departure from the usual requirement of a warrant, the executing officers must be able to “point to specific and *431articulable 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, 110 S.Ct. 1093, 1099, 108 L.Ed.2d 276 (1990) (footnote omitted); see also Arizona v. Hicks, 480 U.S. 321, 325, 107 S.Ct. 1149, 1152, 94 L.Ed.2d 347 (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 Sheriffs 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.
(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.
*432Although 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 Sheriffs staff. Given the circumstances under which Megel lawfully resided in his home, the majoritys assertion that Megel’s home was the functional equivalent of a jail or prison cell defies logic.
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, 99 S.Ct. 1861, 1878, 60 L.Ed.2d 447 (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, 104 S.Ct. 3194, 3201, 82 L.Ed.2d 393 (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, 104 S.Ct. at 3201. 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 is obvious that a jail shares none of the *433attributes of privacy of a home.” Lanza v. New York, 370 U.S. 139, 143, 82 S.Ct. 1218, 1221, 8 L.Ed.2d 384 (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, 99 S.Ct. at 1883, 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, 99 S.Ct. at 1877. 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 “burden ... is not satisfied by showing a mere submission to a claim of lawful authority.” Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 1324, 75 L.Ed.2d 229 (1983); see also Bumper v. North Carolina, 391 U.S. 543, 548-49, 88 S.Ct. 1788, 1792, 20 L.Ed.2d 797 (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 *434officer ... 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 ... 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, 88 S.Ct. at 1792 (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 *435subject 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 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, 99 S.Ct. 2577, 2580, 61 L.Ed.2d 220 (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.
“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 magis*436trate 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, 89 S.Ct. 2034, 2039, 23 L.Ed.2d 685 (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, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215 (1963). As the Supreme Court 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, 115 S.Ct. 1555, 1567, 131 L.Ed.2d 490 (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, 115 S.Ct. at 1565 (quoting United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383, 87 L.Ed.2d 481 (1985)). Thus, *437“[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, 115 S.Ct. at 1566.
The Commonwealth relied heavily on Bamick’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 rale because it could have been used for impeachment purposes. See United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 3380, 87 L.Ed.2d 481 (1985). The failure to produce impeachment evidence that would have discredited Bamick’s testimony undermines confidence in the outcome of the trial.
For these reasons, I would reverse the conviction and remand for a new trial.