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ALBANY � An appellate panel in Albany has unanimously upheld a search where a police officer, lacking probable cause, entered a college residence hall, knocked on the door of a student’s room and inquired about criminal activity. The Appellate Division, Third Department, specifically refused to expand on People v. DeBour, 40 NY2d 210 (1976), or its progeny. DeBour and the cases that followed establish different requirements for different levels of police interaction with potential crime suspects. “In the absence of a precedent in New York precluding a police officer who lacks probable cause from knocking on the door and inquiring of the resident at night, we decline defendant’s invitation to create one or to add limitations to the well-accepted predicates for different levels of police intrusion,” the panel said through Justice Robert S. Rose. People v. Marshall, 14894, arose out of the Tompkins County conviction of William L. Marshall on a variety of drug counts, and his sentence by County Court Judge M. John Sherman. The prosecution of Mr. Marshall began during the early morning hours of Dec. 5, 2001, when Deputy Dawn Caulkins observed in a parking lot near a Tompkins-Cortland Community College residence hall a car she had pulled over earlier for speeding. When Deputy Caulkins pulled over the vehicle, she detected an odor of marijuana, and the driver told her that he had smoked half a joint earlier at one of the residence halls. The motorist said he had been smoking marijuana with the defendant. At the residence hall, Deputy Caulkins contacted the resident director who allowed her into the locked building and escorted her to the suite shared by Mr. Marshall and other students. When they knocked on the door, a voice from within said “come in” and they entered the suite. Deputy Caulkins told Mr. Marshall about her conversation with the motorist and he admitted to possessing ecstasy pills. Mr. Marshall then grabbed a box and attempted to flee. He was promptly caught with a 33-ounce brick of cocaine. A warranted search of the suite turned up additional drugs and drug paraphernalia. Mr. Marshall was convicted at a bench trial after Judge Sherman refused to suppress the evidence. He was sentenced to a term of 15 years to life. The main issue on appeal was whether Deputy Caulkins had any authority to enter the residence hall or knock on the door to Mr. Marshall’s suite. Through DeBour, the Court of Appeals erected a four-tiered legal scaffold on which to judge police-citizen encounters. At the lowest level, police may request information based only on an “objective credible belief” of criminal behavior, and cannot take any restrictive action absent further evidence. In order to interfere with a citizen, an officer must have a “founded suspicion that criminal activity is afoot.” A reasonable and articulable suspicion of criminal activity is required for non-custodial questioning and a frisk. Probable cause is necessary to support an arrest. Justice Rose said the encounter in this case was a level two intrusion requiring a founded suspicion of criminal activity. Here, he said, authorities met the standard for a common-law right to inquire. The court said Deputy Caulkins’ discussion with the motorist provided enough information and created enough suspicion to justify an inquiry of Mr. Marshall. Once that inquiry was initiated, the panel said, the door to the suite was literally and figuratively opened when one of the lawful residents invited the visitor, who turned out to be a police officer, to enter. Tompkins County District Attorney George M. Dentes of Ithaca argued for the prosecution. Charles Guttman of Guttman & Wallace in Ithaca appeared for the defense. Joining Justice Rose on the panel were Justices Thomas E. Mercure, D. Bruce Crew III, Anthony J. Carpinello and Anthony T. Kane.

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