Megel v. Com.

• Decision Date: 01 February 2000
• Docket Number: Record No. 1480-98-4.
• Parties: Michael MEGEL v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

524 S.E.2d 139

31 Va. App. 414

Michael MEGEL v. COMMONWEALTH of Virginia.

Record No. 1480-98-4.

Court of Appeals of Virginia, Alexandria.

February 1, 2000.

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

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

Present: BENTON and ANNUNZIATA, JJ., and DUFF, Senior Judge.

DUFF, Senior Judge.

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 post-trial request for a subpoena duces tecum to obtain the documents. Finding no error, we affirm.

FACTS¹

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, 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 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 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 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 "Nile 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, 88 S.Ct. 507, 511, 19 L.Ed.2d 576 (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, 119 S.Ct. 469, 473, 142 L.Ed.2d 373 (1998) (quoting Rakas v. Illinois, 439 U.S. 128, 143, 99 S.Ct. 421, 430, 58 L.Ed.2d 387 (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 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, 740 n. 5, 99 S.Ct. 2577, 2580 n. 5, 61 L.Ed.2d 220 (1979)

(noting that "where an individual's subjective expectations halve] 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.

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 members of the sheriff's department would be permitted...