Megel v. Com., Record No. 002816.

• Decision Date: 14 September 2001
• Docket Number: Record No. 002816.
• Citation: 262 Va. 531,551 S.E.2d 638
• Court: Virginia Supreme Court
• Parties: Michael L. MEGEL v. COMMONWEALTH of Virginia.

551 S.E.2d 638

262 Va. 531

Michael L. MEGEL v. COMMONWEALTH of Virginia.

Record No. 002816.

Supreme Court of Virginia.

September 14, 2001.

Marvin D. Miller, Alexandria, for appellant.

John H. McLees, Jr., Senior Ass't Atty. Gen. (Mark L. Earley, Atty. Gen., on brief), for appellee.

Present: CARRICO, C.J., LACY, HASSELL, KEENAN, KOONTZ, and KINSER, JJ., and STEPHENSON, Senior Justice.

ROSCOE B. STEPHENSON, Jr., Senior Justice.

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, 105 S.Ct. 409, 83 L.Ed.2d 246 (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, 104 S.Ct. 2091, 80 L.Ed.2d 732 (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, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998); Rakas v. Illinois, 439 U.S. 128, 143, 99 S.Ct. 421, 58 L.Ed.2d 387 (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, 100 S.Ct. 1371, 63 L.Ed.2d 639 (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, 104 S.Ct. 3194, 82 L.Ed.2d 393 (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, 104 S.Ct. 3194 (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, 104 S.Ct. 3194.

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

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