                                               Tuesday         10th

             February, 1998.



Lemar Jamie Anderson, s/k/a
 Lamar Jamie Anderson,                                         Appellant,

against        Record No. 2145-96-1
               Circuit Court Nos. CR95-3728 and CR95-3886

Commonwealth of Virginia,                                      Appellee.

                          Upon a Rehearing En Banc

    Before Chief Judge Fitzpatrick, Judges Baker, Benton, Coleman,
        Willis, Elder, Bray, Annunziata, Overton and Bumgardner

                James Amery Thurman (Thurman & Thurman, on
                brief), for appellant.

                Michael T. Judge, Assistant Attorney General
                (Richard Cullen, Attorney General; Margaret
                Ann B. Walker, Assistant Attorney General,
                on brief), for appellee.



             A divided panel of this Court affirmed Lemar Jamie

Anderson's convictions of possession of cocaine, possession of a

firearm after having been convicted of a felony, and possession of

marijuana.     Anderson v. Commonwealth, 25 Va. App. 565, 490 S.E.2d 274

(1997).   On Anderson's motion, we stayed the mandate of that decision

and granted a rehearing en banc.     Upon rehearing en banc, the stay of

this Court's September 16, 1997 mandate is lifted, and we affirm the

judgment of the trial court for the reasons set forth in the majority

panel opinion.

             Chief Judge Fitzpatrick and Judges Benton, Coleman and Elder

dissent for the reasons set forth in the panel dissent.      Although
Judge Benton concurs in substantial part with the dissent, he would

further hold that the portion of the conviction order, which requires

Anderson to "waive his Fourth Amendment right against unreasonable

searches and seizures for a period of one year," is void as being

violative of the Constitution of the United States.   See U.S. Const.

amend. IV (protecting "[t]he right of the people to be secure against

. . . unreasonable searches and seizures"); amend. XIV.

          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

September 16, 1997 mandate.
          This order shall be published and certified to the trial

court.

                          A Copy,

                               Teste:

                                         Cynthia L. McCoy, Clerk

                               By:

                                         Deputy Clerk




                                 -2-
                                                Tuesday          14th

               October, 1997.



Lemar Jamie Anderson, s/k/a
 Lamar Jamie Anderson,                                     Appellant,
against        Record No. 2145-96-1
               Circuit Court Nos. CR95-3728 and CR95-3886

Commonwealth of Virginia,                                  Appellee.


                   Upon a Petition for Rehearing En Banc

                           Before the Full Court



             On September 24, 1997 came the appellant, by court-appointed

counsel, and filed a petition praying that the Court set aside the

judgment rendered herein on September 16, 1997, and grant a rehearing

en banc thereof.

             On consideration whereof, the petition for rehearing en banc

is granted, the mandate entered herein on September 16, 1997 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.

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.




                                    -3-
A Copy,

    Teste:

             Cynthia L. McCoy, Clerk

    By:

             Deputy Clerk




      -4-
                   COURT OF APPEALS OF VIRGINIA


Present: Judges Coleman, Willis and Senior Judge Hodges
Argued at Norfolk, Virginia


LEMAR JAMIE ANDERSON, S/K/A
 LAMAR JAMIE ANDERSON
                                                OPINION BY
v.        Record No. 2145-96-1         JUDGE JERE M. H. WILLIS, JR.
                                            SEPTEMBER 16, 1997
COMMONWEALTH OF VIRGINIA


      FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
                   A. Bonwill Shockley, Judge
          James Amery Thurman (Thurman & Thurman, on
          brief), for appellant.

          Margaret Ann B. Walker, Assistant Attorney
          General (James S. Gilmore, III, Attorney
          General, on brief), for appellee.



     On appeal, Lemar Jamie Anderson contends that the trial

court erred in denying his motion to suppress evidence seized

from his person.   He argues that his prior waiver of his Fourth

Amendment right against unreasonable searches and seizures could

not validate an otherwise invalid search.      We disagree and affirm

the judgment of the trial court.

                              I.   FACTS

     On January 9, 1995, pursuant to a written plea agreement,

Anderson pled guilty to feloniously possessing a firearm on

school property.   Under the terms of the plea agreement, Anderson

agreed to waive "his Fourth Amendment right against unreasonable

searches and seizures" for one year.       Following a colloquy in




                                    -5-
which Anderson acknowledged that he understood the agreement, the

sentencing judge found that Anderson's plea was entered freely

and voluntarily.   Prior to the trial court's acceptance of the

plea agreement, the prosecutor stated:
          [W]e've given him every incentive in the
          world to remain of good behavior. He will
          know as he's out and about that he can be
          stopped at any time and be checked to make
          sure he is not carrying drugs or weapons or
          anything else.


     At the sentencing hearing, the Commonwealth introduced

certified copies of Anderson's two prior misdemeanor convictions

for possession of marijuana with intent to distribute.    The

stated purpose for offering Anderson's prior record was to

demonstrate his history of recidivism and drug use and to explain

the inclusion of the waiver provision.
     In accordance with the plea agreement, the January, 1995

sentencing order provided, in pertinent part:

          [4] That the defendant shall waive his Fourth
          Amendment right against unreasonable searches
          and seizures for a term of one year from the
          date of sentencing, to-wit: he shall submit
          his person, place of residence and property
          to searches and seizures at any time of the
          day or night by any law enforcement officer
          with or without a warrant.


     On June 21, 1995, two City of Virginia Beach police officers

working as private security guards saw Anderson and two other

individuals alight from a van, "being very loud in public."     The

officers approached the men and seized from Anderson:    0.07 grams

of cocaine, which he dropped on the ground; a .357 magnum firearm



                                  -6-
in his backpack; and 0.18 ounces of marijuana in a baggie in his

backpack.   The circumstances did not support a warrantless search

of Anderson's person.

     Anderson was indicted for possession of cocaine, possession

of a firearm after having been convicted of a felony, possession

of a controlled substance while in possession of a firearm, and

possession of marijuana.   He moved pre-trial to suppress the

evidence seized from his person, arguing that his prior waiver of

his Fourth Amendment rights was invalid.     The trial court ruled

that the waiver was valid and denied the motion to suppress.
                     II.   OTHER JURISDICTIONS

     Anderson contends that his waiver of his Fourth Amendment

rights as a condition of the January, 1995 plea agreement did not

validate the search of his person.      This issue is one of first

impression in Virginia.    However, other jurisdictions have

addressed similar questions regarding waiver of Fourth Amendment

rights as a condition of probation or of sentence suspension.

See generally Phillip E. Hassman, Annotation, Validity of

Requirement That as Condition of Probation, Defendant Submit to

Warrantless Searches, 79 A.L.R.3d 1083 (1977).

                                 A.

     In Tamez v. State, 534 S.W.2d 686 (Tex. Ct. Crim. App.

1976), the Texas Court of Criminal Appeals struck down a

probationary condition requiring the defendant to submit his

person, residence or vehicle to search by any peace officer at




                                      -7-
any time.   Acknowledging that probationary conditions may be

upheld if reasonably related to rehabilitation of the accused or

protection of the public, id. at 691, the Texas court invalidated

the Fourth Amendment waiver because it found:   (1) the choice of

accepting the condition or of going to prison rendered the

defendant's decision coerced and involuntary; and (2) the waiver

 was too broad and did not serve the ends of probation.     Id. at

692.   Similarly other jurisdictions have struck down so-called

"blanket" provisions because of their overbreadth.   See United

States v. Consuelo-Gonzalez, 521 F.2d 259 (9th Cir. 1975) (en

banc) (search provision too broad under federal statute); Grubbs

v. State, 373 So.2d 905 (Fla. 1979) (probation condition imposed

by trial judge allowing warrantless search at any time by law

enforcement official too broad); Kirkpatrick v. State, 412 So.2d

903, 905 (Fla. Dist. Ct. App. 1982) (drug offender's probation

search condition "improper and should be stricken"); State v.

Fields, 686 P.2d 1379 (Haw. 1984) (probation condition permitting

warrantless search for drugs at any time too broad absent

reasonable suspicion).   Some courts have held that the waiver of

Fourth Amendment rights in return for probation or parole is

legally coercive, thereby negating voluntary consent.     See United

States ex rel. Coleman v. Smith, 395 F.Supp. 1155, 1157 (W.D.N.Y.

1975); People v. Peterson, 233 N.W.2d 250, 255 (Mich. Ct. App.

1975).   But see People v. Richards, 256 N.W.2d 793, 795 (Mich.

Ct. App. 1977).



                                  -8-
                                 B.

     Other jurisdictions have taken a different view.        In People

v. Mason, 488 P.2d 630 (Cal. 1971), the California Supreme Court

upheld a probation condition that required a narcotics offender

to "'submit his person, place of residence, vehicle, to search

and seizure at any time of the day or night, with or without a

search warrant, whenever requested to do so by the Probation

Officer or any law enforcement officer.'"      Id. at 631.    The

California court ruled that this condition had been validly

imposed, was "reasonably related to the probationer's prior

criminal conduct[,] and [was] aimed at deterring or discovering

subsequent criminal offenses."   Id. at 632.    Moreover, "when [a]

defendant in order to obtain probation specifically agreed to

permit at any time a warrantless search of his person, car and

house, he voluntarily waived whatever claim of privacy he might

otherwise have had."   Id. at 634.     See Owens v. Kelley, 681 F.2d

1362 (11th Cir. 1982) (upholding condition providing for

warrantless searches by law enforcement or probation officers to

extent conducted for probationary purposes); State v. Montgomery,
566 P.2d 1329 (Ariz. 1977) (upholding condition that a convicted

burglar submit to warrantless searches at any time by law

enforcement or probation officers); In re Marcellus L., 279 Cal.

Rptr. 901 (Cal. Ct. App. 1991) (upholding warrantless search by

police officer who lacked prior knowledge of probation search

condition); State v. Josephson, 867 P.2d 993 (Idaho Ct. App.




                                      -9-
1993) (holding that defendant voluntarily consented to search

condition); Allen v. State, 369 S.E.2d 909 (Ga. 1988) (plea

bargain agreement to waive Fourth Amendment protection valid);

Himmage v. State, 496 P.2d 763 (Nev. 1972); State v. Perbix, 331

N.W.2d 14 (N.D. 1983).

        Some jurisdictions that permit a condition of probation or

parole to circumscribe a convicted criminal's Fourth Amendment

protection from governmental intrusion have limited the scope of

the warrantless search condition.     Some courts have restricted
                            1
who may authorize the search and the grounds upon which
warrantless searches may be made. 2   Some courts require a

reasonable nexus between the warrantless search provision and the

offense for which the offender was convicted. 3
    1
     See, e.g., Roman v. State, 570 P.2d 1235, 1242 n.20 (Alaska
1977) ("correctional authorities"); State v. Bollinger, 405 A.2d
432 (N.J. Super. Ct. Law Div. 1979) (probation officers); State
v. Age, 590 P.2d 759, 763-64 (Or. Ct. App. 1979) (under direction
and control of probation officer); State v. Cummings, 262 N.W.2d
56, 61 (S.D. 1978) (noting that search condition required prior
consent from probation officer).
    2
     See, e.g., Consuelo-Gonzalez, 521 F.2d at 266 (reasonable
cause); Roman, 570 P.2d at 1241, 1243 (reasonable cause); State
v. Burke, 766 P.2d 254, 256 (Mont. 1988) ("reasonable grounds");
Himmage, 496 P.2d at 764-65 (reasonable cause); State v.
Velasquez, 672 P.2d 1254, 1260 (Utah 1983) ("reasonable
grounds").
    3
     See, e.g., United States v. Schoenrock, 868 F.2d 289 (8th
Cir. 1989) (probation search condition of drug offender for
alcohol and controlled substances); United States v. Sharp, 931
F.2d 1310 (8th Cir. 1991) (search condition of supervised release
of drug offender for controlled substances and alcohol); Roman,
570 P.2d at 1242-43 (reasonably related to rehabilitation and
crime for which offender was convicted); People v. Hellenthal,
465 N.W.2d 329, 330 (Mich. Ct. App. 1990) (reasonably tailored to
rehabilitation); State v. Fetterhoff, 739 S.W.2d 573 (Mo. Ct.



                                    -10-
     In In re: Tyrell J., 876 P.2d 519 (Cal. 1994), a juvenile

was searched by a police officer who was unaware that the

juvenile had waived his Fourth Amendment rights as a condition of

probation.   Despite the lack of probable cause, the California

Supreme Court held that "a juvenile probationer subject to a

valid search condition does not have a reasonable expectation of

privacy over his person or property." The court noted that:
          In this case, [the defendant] was subject to
          a valid search condition, directly imposed on
          him by the juvenile court in a prior matter.
           We presume that he was aware of that
          limitation on his freedom, and that any
          police officer, probation officer, or school
          official could at any time stop him on the
          street, at school, or even enter his home,
          and ask that he submit to a warrantless
          search. There is no indication the minor was
          led to believe that only police officers who
          were aware of the condition would validly
          execute it. The minor certainly could not
          reasonably have believed [the police officer]
          would not search him, for he did not know
          whether [the officer] was aware of the search
          condition. Thus, any expectation the minor
          may have had concerning the privacy of his
          bag of marijuana was manifestly unreasonable.

Id. at 529-30 (footnote omitted).

(..continued)
App. 1987) (requiring drunk driver to submit to blood alcohol
test upon request of any law enforcement officer); State v.
Morgan, 295 N.W.2d 285 (Neb. 1980) (requiring drug offender to
submit to search at any time by any law enforcement officer, with
or without cause, for controlled substances); State v. Bollinger,
405 A.2d 432 (N.J. Super. Ct. Law Div. 1979) (search of drug
offender for controlled substances at a reasonable time and in a
reasonable manner); State v. Age, 590 P.2d 759, 763-64 (Or. Ct.
App. 1979) (probation condition must be reasonably related to
offense for which convicted or needs of effective probation);
State v. Moses, 618 A.2d 478, 484 (Vt. 1992) (condition must meet
probation needs).




                                    -11-
        Anderson argues that the California cases are inapposite

because they concern conditions of probation, whereas his waiver

was a condition of a suspended sentence.      The law of Virginia

distinguishes the suspension of a sentence from the imposition of

probation.     See Grant v. Commonwealth, 223 Va. 680, 292 S.E.2d

348 (1982).     Code §§ 19.2-303, 19.2-304.   However, the conditions

imposed in probation and those imposed in the suspension of

sentences need not be analyzed in different contexts.     The common

objective of such conditions is to protect society and to promote

rehabilitation of the convict.     Both probation and the suspension

of a sentence involve the trial court's discretionary, and

conditional, release of a convict from the service of a sentence

within the penal system.
        In State v. Mitchell, 207 S.E.2d 263 (N.C. App. 1974), the

Court of Appeals of North Carolina, approving a Fourth Amendment

waiver as a condition of a suspended sentence, stated:

             Rights guaranteed by the Fourth Amendment may
             be waived, Zap v. United States, 328 U.S. 624
             [] (1946), and the voluntary consent to
             warrantless search of one's premises will
             render competent evidence obtained by the
             search. [] We see no sound reason why such
             waiver and consent may not effectively be
             given by agreeing thereto as one of the
             conditions of a suspended sentence. This
             should especially be true, where, as here,
             such condition is clearly designed to
             facilitate the State's supervision of the
             probationer's rehabilitation.

Id. at 264-65 (citation omitted). 4
    4
        Subsequently, the North Carolina legislature enacted a



                                    -12-
                  III.   VALIDITY OF THE WAIVER

     Our view of the Fourth Amendment and of applicable public

policy leads us to conclude that Anderson's waiver was valid.    In




(..continued)
statute that "forbids requiring as a part of a probationary
sentence the condition that a defendant consent to a warrantless
search by anyone other than a probation officer." State v.
Moore, 247 S.E.2d 250, 251 (N.C. App. 1978). See N.C. Gen. Stat.
§ 15A-1343(b1)(7).




                                 -13-
reaching that conclusion, we have considered the contrary

arguments invoked by other jurisdictions and argued by Anderson.

                           A.    COERCIVENESS

     Anderson argues that a waiver given under threat of criminal

punishment results from coercion.      We find this argument

unpersuasive.    The prospect of punishment confronted Anderson not

for the purpose of inducing him to give the waiver, but rather as

the consequence of the crime for which he was convicted.

Furthermore, the waiver was not imposed upon Anderson by the

sentencing court.    It was an element of his voluntary plea

agreement, and as such, was proposed by him to the sentencing

court.   Anderson was a moving party.       He sought the imposition of

the waiver.   To conclude that Anderson's decision to petition for

a suspended sentence conditioned upon the search provision was

coerced would necessarily invalidate all conditions of plea

agreements.     See State v. Josephson, 867 P.2d 993, 996 (Idaho Ct.

App. 1993); State v. Morgan, 295 N.W.2d 285, 288-89 (Neb. 1980).

An offender's selection between two sanctions resulting from his

own wrongdoing constitutes choice, not coercion.

                            B.   OVERBREADTH

     Anderson argues that the waiver was overbroad, both in scope

and in duration.    We disagree.    The scope of the waiver was

necessary to its effectiveness.      Its purpose was to ensure

Anderson's good conduct.    His vulnerability to search was an

inducement to his abstention from possession of contraband and



                                     -14-
from illegal possession of weapons.

     Most waivers are prospective.    Usually, a waiver is given

seconds or minutes prior to the authorized search.   However, on

occasion, a waiver may precede the search thereby authorized by

hours or days.   See Zap v. United States, 328 U.S. 624, 628

(1946) (upholding prospective contractual waiver permitting

government inspection of business records).   We perceive no

conceptual objection to yet further prolongation of a waiver.      In

this case, Anderson, the moving party, set the duration of his

waiver.   We see no reason to repudiate in retrospect the

agreement that he proposed and voluntarily undertook.    See

Mitchell, 207 S.E.2d at 264-65.

                        C.   REASONABLENESS

     Upon a defendant's criminal conviction, a trial judge "may

suspend imposition of sentence or suspend the sentence in whole

or part and in addition may place the accused on probation under

such conditions as the court shall determine . . . ."    Code

§ 19.2-303.   "The only limitation placed upon the discretion of

the trial court in its determination of what conditions are to be

imposed is that a condition be 'reasonable' . . . 'having due

regard to the nature of the offense, the background of the

offender and the surrounding circumstances.'"    Nuckoles v.

Commonwealth, 12 Va. App. 1083, 1086, 407 S.E.2d 355, 356 (1991)

(quoting Loving v. Commonwealth, 206 Va. 924, 930, 147 S.E.2d 78,

83 (1966), rev'd on other grounds, 388 U.S. 1 (1967)).



                                  -15-
     The Fourth Amendment forbids unreasonable searches and

seizures.   Waiver is a long accepted circumstance that may render

a search reasonable.     Anderson had a history of illegal firearm

and drug possession.     The purpose of the waiver was to ensure

that he would cease such unlawful conduct.       That purpose sought

to promote public order and safety, to effect Anderson's

rehabilitation, and to justify sparing him punishment and

permitting him to remain at liberty.        We find all these

objectives to be reasonable.
                           D.   PUBLIC POLICY

     The public policy of the Commonwealth seeks to avoid the

unnecessary imposition of punishment, to promote public order and

safety, and to effect the rehabilitation of malefactors.        See

Singleton v. Commonwealth, 11 Va. App. 575, 578, 400 S.E.2d 205,

207 (1991); Deal v. Commonwealth, 15 Va. App. 157, 160, 421

S.E.2d 897, 899 (1992).    The waiver proposed by Anderson and

incorporated into his January, 1995 sentence served those

purposes.

                   IV.    THE NATURE OF THE WAIVER

     Anderson argues that at his sentencing in January, 1995, he

did not waive his Fourth Amendment rights, but simply agreed to

give such a waiver in the future should a search of his person,

place of residence or property be sought.       He argues that the

language in his sentencing order "[t]hat the defendant shall

waive his Fourth Amendment right" denotes a requirement of future



                                     -16-
action on his part, rather than a recital of a present waiver.

This is not the interpretation that the trial court adopted, and

we think it unreasonable and unlikely that the parties intended

such a meaning at the January, 1995 sentencing.       We construe the

words "shall waive" to state an imperative, not to refer to a

future act.    The construction adopted by the trial court is

supported by the record of the January, 1995 sentencing

proceedings.
        Anderson argues that because he did not, in January, 1995,

give an ongoing waiver, but rather merely agreed to give a future

waiver, his refusal to submit to a search on June 21, 1995, could

amount to no more than a violation of the conditions of his

suspended sentence, and could not validate an otherwise

unreasonable warrantless search of his person.        Because of the

view that we take of the nature of the waiver, we reject this

argument.

                    V.   POLICE OFFICERS' KNOWLEDGE

        Finally, Anderson contends that the police officers' lack of

knowledge of his waiver prevents the officers' reliance upon the

waiver to justify an otherwise unconstitutional search.       This

argument misses the point.     The conduct of the officers is not at

issue. 5   Absent a legitimate expectation of privacy, there can be
    5
     In addition, the record does not reveal any harassing or
intimidating conduct by the officers. See United States v.
Consuelo-Gonzalez, 521 F.2d 259, 265 (9th Cir. 1975) (en banc).
To the contrary, the officers came upon three "very loud"
individuals alighting from a van, and investigated the situation.



                                    -17-
no violation of the Fourth Amendment.

     In determining whether a criminal defendant enjoys a

reasonable expectation of privacy in the object to be searched,

we consider whether he has exhibited an expectation of privacy in

the object and whether that expectation is one that "society is

prepared to recognize as reasonable."    Katz v. United States, 389

U.S. 347, 361 (1967) (Harlan, J., concurring).    See Wells v.

Commonwealth, 6 Va. App. 541, 549, 371 S.E.2d 19, 23 (1988).

Admittedly, Anderson exhibited a subjective expectation of

privacy over the controlled substances and the handgun in his

backpack.   However, he had divested himself of the right to such

an expectation when he knowingly and voluntarily waived his

Fourth Amendment right to be free from unreasonable searches and

seizures.   Because Anderson was subject to a valid search

condition, he could claim no legitimate expectation of privacy.

     The judgment of the trial court is affirmed.
                                               Affirmed.




                                  -18-
Coleman, J., concurring in part, and dissenting in part.



     I concur and join in Part IV of the majority opinion

rejecting the defendant's claim that, under the terms of the plea

agreement, he did not grant a present waiver but "simply agreed

to give such a waiver in the future."      As to the validity of that

waiver provision as construed by the majority, I find it

unnecessary to address that question because, in my view, the

scope of the defendant's waiver in this case was limited to

allowing police officers, including the defendant's probation

officer, to conduct reasonable searches without obtaining a

warrant to search the defendant's person, residence, vehicle, and

other places where he might have a protected privacy interest in

order to supervise his probation.    The search undertaken in this

case was clearly unrelated to the supervision of defendant's

probation, as evidenced by the fact that the officer was unaware

of the defendant's status and the waiver he had executed.
     The purpose of the waiver of the reasonableness requirement

was to enable law enforcement officers or those persons

supervising the defendant's probation to search him or his

protected areas of privacy in order to assure compliance with the

terms and conditions of his probation, which required that he not

use or possess drugs and that he not violate the law.     The waiver

did not constitute, in my opinion, a carte blanche forfeiture by

the defendant of his Fourth Amendment rights so as to legitimize

every search of his person or possessions.     Thus, I would hold


                                    -19-
that the police officers' warrantless search of the defendant

conducted without probable cause or without his consent and

without knowledge of or pursuant to the waiver provision was

unreasonable and violated the defendant's protection of the

Fourth Amendment.    Accordingly, the cocaine, marijuana, and

firearm were illegally seized and should have been suppressed

based upon the exclusionary rule set down in Mapp v. Ohio, 367

U.S. 643 (1961). 6
     The majority, relying upon the California case of In re:

Tyrell J., 876 P.2d 519 (Cal. 1994), and the North Carolina case

of State v. Mitchell, 207 S.E.2d 263 (N.C. App. 1974), the latter

having been overruled by statute, necessarily holds that the

officers' otherwise illegal search of the defendant was

reasonable because, in the waiver, the defendant had forfeited

his reasonable expectation of privacy, regardless of whether the

officer knew of or was conducting the search pursuant to the

defendant's waiver.   I disagree with that interpretation of the

waiver and disagree with the majority's assertion that "[t]he

conduct of the officers is not at issue."   In order for police

officers to lawfully seize and search a suspect without a

warrant, the officers must have either probable cause to arrest,
     6
      My view of the case would not necessarily preclude the
illegally seized evidence from being used to revoke the
defendant's probation or suspended sentences even if the search
was not conducted for the purpose of supervising the defendant's
probation. See Anderson v. Commonwealth, 251 Va. 437, 470 S.E.2d
862 (1996); Johnson v. Commonwealth, 21 Va. App. 172, 462 S.E.2d
907 (1995).




                                   -20-
consent, or be acting in reliance upon or pursuant to a valid

waiver.       The officers possessed none of these prerequisites.

     The majority's holding, which is based upon the waiver,

would validate every otherwise illegal search or seizure of the

defendant, presumably in any jurisdiction, even though no

probable cause existed to suspect the accused of criminal

activity, except, perhaps, where the officers use excessive

force.        The defendant's waiver in this case was not, in my

opinion, that broad or far-reaching.          The purpose of the waiver

was to allow law enforcement officers, including the defendant's

probation officer, who knew of the defendant's probationary

status, to be able to monitor the defendant's conduct and

behavior by searching him, his home, his vehicle, or personal

belongings without notice and without probable cause.          The

defendant did not forfeit "whatever claim of privacy he otherwise

might have," as the majority holds. 7         A waiver for the limited

purpose we have here is, in my judgment, a legitimate and

effective enforcement tool, similar to the requirement that

probationers submit to urine screens, which enable the

authorities to assure that a probationer or convict with a

suspended sentence is adhering to the conditions of probation or

suspension.       The defendant's waiver was not, in my opinion, a

forfeiture of all Fourth Amendment protections.          As with consent,
          7
        As previously noted, because of the manner in which I
construe the waiver, I do not reach the question of the
constitutionality of a waiver of all Fourth Amendment rights.



                                       -21-
unless officers conduct a search within the scope of the consent

or waiver, a warrantless search without probable cause is

unreasonable.   Accordingly, because the trial court erred in not

suppressing the evidence, I respectfully dissent.




                                  -22-
