UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 95-5490

WILLIAM ZURKAN,

Defendant-Appellant.

Appeal from the United States District Court

for the District of Maryland, at Cumberland.

Alexander Williams, Jr., District Judge.

(CR-94-0433-AW)

Submitted: March 12, 1996

Decided: March 26, 1996

Before MURNAGHAN, HAMILTON, and WILLIAMS,

Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Robert C. Bonsib, MARCUS & BONSIB, Greenbelt, Maryland, for

Appellant. Lynne A. Battaglia, United States Attorney, Hollis

Raphael Weisman, Assistant United States Attorney, Hyattsville,

Maryland, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

The Appellant, William Zurkan, appeals his conviction for possession of marijuana.1 Zurkan alleges that the district court committed

reversible error by failing to suppress evidence obtained through a

warrantless search. After a complete review of the district court's

decision to deny Zurkan's motion to suppress,2 we find no reversible

error and affirm Zurkan's conviction and sentence.

While on bicycle patrol in Greenbelt Park, United States Park

Police Officer James Pankas detected the odor of marijuana as he

approached the campsite rented by Zurkan. The campsite consisted of

a tent erected at the rear of the site, a van parked at the front, and five

people sitting at the picnic table in the middle of the campsite. As

Pankas entered the campsite to investigate, he observed a hand-rolled

cigarette between Zurkan's feet. Pankas picked up the cigarette and

smelled the odor of marijuana. Pankas asked Zurkan to step away

from the picnic table and to place his hands on the van and spread his

legs. In Zurkan's right front pocket, Pankas found $484 in U.S. bills

folded in half, and in the left front pocket, he discovered a plastic bag

containing seven grams of marijuana.

Suddenly, Zurkan grabbed the plastic bag and fled the scene after

throwing the marijuana through an open window of the van. Pankas

was unable to catch Zurkan so he returned to the campsite to recover

the plastic bag of marijuana from the van and search the other persons

at the campsite. As Pankas retrieved the marijuana from the van, he

saw a large grocery bag full of marijuana which he also seized. Additionally, Pankas recovered from the van a backpack containing LSD

and other drugs. A few days later, Zurkan surrendered to police and

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1 21 U.S.C. § 844 (1988).

2 United States v. Han, 74 F.3d. 537, 540 (4th Cir. 1996).

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was indicted for possession with intent to distribute LSD3 and possession of marijuana.4 Zurkan moved to suppress the drugs found on his

person and in the van, but the court denied the motion. A jury found

Zurkan guilty of marijuana possession and he was sentenced to three

months incarceration, one year supervised release, and a $1000 fine.

Zurkan's claim that the drugs should have been suppressed is without merit. Officer Pankas's entry onto Zurkan's campsite was valid

because Zurkan had no legitimate privacy expectations in the campsite. Zurkan has the burden of showing that: (1) he manifested a subjective expectation of privacy in the area searched; and (2) his

expectation of privacy is objectively reasonable. 5 Zurkan fails to satisfy his burden.

It is well settled that an individual may not legitimately demand

privacy for activities conducted outdoors, except in the area immediately surrounding his home.6 While there was a tent erected at the

campsite, Zurkan testified that the tent was not his, nor did he spend

the night at the campsite. In this case, Zurkan cannot assert that the

tent or the campsite should be treated as his home. The campsite

clearly falls within the definition of "open fields" which was set forth

in Oliver; the "open fields" doctrine does not require the area to be

wide open or a field but includes wooded areas as well.7 The "open

fields" doctrine permits police officers to enter and search a field, or

in this case a campsite, without first obtaining a search warrant.8

Having determined that Officer Pankas legitimately entered the

campsite, we hold that the search and seizure of drugs was also valid.

A search may be incident to a subsequent arrest if the officer has

probable cause to arrest before the search.9 Examined in the light most

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3 21 U.S.C. § 841(a)(1) (1988).

4 21 U.S.C. § 844 (1988).

5 See California v. Ciraolo, 476 U.S. 207, 211 (1986).

6 Oliver v. United States, 466 U.S. 170, 179 (1984).

7 United States v. Rigsby, 943 F.2d 631, 636 (6th Cir. 1991), cert.

denied, 503 U.S. 908 (1992).

8 United States v. Rigsby, 943 F.2d at 636-37.

9 Rawlings v. Kentucky, 448 U.S. 98, 100 (1980).

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favorable to the government, the facts of this case show that Pankas

had sufficient probable cause to arrest Zurkan for possession of

marijuana.10 The odor of marijuana permeated the area of the campsite. Pankas observed an apparent marijuana cigarette on the grass

between Zurkan's feet. Upon closer inspection, Pankas confirmed that

the cigarette was hand-rolled and that it had the distinct odor of marijuana. Under the circumstances, it was reasonable based on Pankas's

observations and experiences to conclude that Zurkan had been in

possession of the marijuana cigarette. Consequently, Pankas's search

of Zurkan's person was a search incident to a lawful arrest. The fact

that Pankas conducted this search before formally arresting Zurkan

does change its status.11

Accordingly, we find that the search and seizure of the marijuana

in this matter was lawful and in accordance with the Constitution. We

dispense with oral argument because the facts and legal contentions

are adequately presented in the materials before the court and argument would not aid the decisional process.

AFFIRMED

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10 See United States v. Han, 74 F.3d. at 541.

11 Id.

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