United States v. Zurkan ( 1996 )

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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 posses-
sion 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. Addi-
tionally, 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).
2
was indicted for possession with intent to distribute LSD3 and posses-
sion 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 with-
out merit. Officer Pankas's entry onto Zurkan's campsite was valid
because Zurkan had no legitimate privacy expectations in the camp-
site. Zurkan has the burden of showing that: (1) he manifested a sub-
jective expectation of privacy in the area searched; and (2) his
expectation of privacy is objectively reasonable. 5 Zurkan fails to sat-
isfy his burden.
It is well settled that an individual may not legitimately demand
privacy for activities conducted outdoors, except in the area immedi-
ately 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).
3
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 camp-
site. 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 mari-
juana. 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 argu-
ment would not aid the decisional process.
AFFIRMED
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10 See United States v. Han, 74 F.3d. at 541.
11 Id.4