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State v. Komrosky

Supreme Court of North Dakota

December 12, 2019

State of North Dakota, Plaintiff and Appellee
v.
Kerry Charles Komrosky, Defendant and Appellant

          Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable John W. Grinsteiner, Judge.

          Ladd R. Erickson, Burleigh County Special Assistant State's Attorney, Washburn, ND, for plaintiff and appellee.

          Michael R. Hoffman, Bismarck, ND, for defendant and appellant.

          OPINION

          VandeWalle, Chief Justice.

         [¶1] Kerry Komrosky appealed a criminal judgment after entering a conditional plea of guilty to three drug-related charges. In his plea, Komrosky reserved his right to appeal the district court's denial of his motion to suppress evidence. Komrosky argues the district court erred in finding the warrantless entry into his home fell within the emergency exception to the warrant requirement and the evidence seized was in plain view. We affirm.

         I

         [¶2] Kerry Komrosky was a patrol deputy with the Burleigh County Sheriff's Department. On April 7, 2018, Komrosky was working a day shift with the Department. On the morning of his shift, Komrosky asked his supervisor, Sergeant Nathan McLeish, if he could take an extended lunch break. McLeish allowed Komrosky to take an extended two-hour break.

         [¶3] At 2:35 p.m., Komrosky checked out with a dispatcher at his residence in Lincoln, North Dakota, on his lunch break. At 4:40 p.m., after the dispatcher was unable to reach Komrosky on his radio and his cell phone, the dispatcher informed McLeish that Komrosky had not yet checked back in from his break. McLeish was near United Tribes Technical College at the time, only a couple of miles away from Komrosky's residence. Komrosky had recently been having issues with work conduct including arriving late to work and not arriving to work at all. Because Komrosky was recently having issues with work conduct, McLeish informed the dispatcher that Komrosky probably just had his radio turned off, like he had in the past, but that he would go to Komrosky's residence to check on him. McLeish then left United Tribes College and drove to Komrosky's residence. On the way, McLeish attempted to contact Komrosky on his radio several times but did not get a response.

         [¶4] When McLeish arrived, he parked in the driveway next to Komrosky's residence. Komrosky's squad car was parked parallel to the garage door connected to the residence. The driver's door was slightly ajar, the car was running, and it was unlocked. At the suppression hearing, McLeish testified that Komrosky's squad car should have been turned off and locked having been parked for such an extended period of time. McLeish did not notice anybody around, so he began banging on the garage door. After getting no response, McLeish went to the front door and knocked on the front door several times. While knocking, Komrosky's dogs inside his home were barking and jumping and making a lot of commotion. McLeish repeatedly shouted for Komrosky to come out and knocked on the door for five or six minutes without any response from Komrosky. McLeish then checked the garage door one more time. After still not getting a response, McLeish entered Komrosky's residence through the front door. After entering, McLeish stood in the entryway for several minutes yelling Komrosky's name and for him to come downstairs. McLeish received no response. During this time, the dogs continued to bark.

         [¶5] McLeish made his way to a stairway in the residence. At the suppression hearing, McLeish testified that the dogs were leading him towards the stairs. McLeish also testified that he was scared and nervous because he wasn't getting a response from Komrosky and wasn't sure what he was walking into. McLeish was concerned that Komrosky may have done something to himself because he was "in a dark place" at the time. Komrosky had recently lost his "dream job" on the Metro Area Narcotics Task Force.

         [¶6] McLeish walked up the stairs to a landing that turned and led to the second floor of the residence. Before turning to go to the second floor, McLeish radioed Deputy Weigel for backup. McLeish could hear his voice being broadcast in the house through Komrosky's radio. McLeish proceeded up the stairs to the second floor of Komrosky's home. On the second floor, McLeish noticed that the furniture was torn up and there were parts and pieces of furniture on the floor. McLeish made his way around the second floor, making sure Komrosky was not there.

         [¶7] McLeish went up the next flight of stairs towards the third floor. At the top of the stairs, there was a landing that turned and faced a hallway on the third floor. McLeish testified that the dogs were standing on the landing looking down the hallway. The dogs would repeatedly turn and look at McLeish and then look back down the hallway. Continuing to shout for Komrosky, McLeish made his way to the landing. After making his way to the top of the stairs, McLeish quickly looked around the corner. Komrosky came out from a room on the right-hand side of the hallway. McLeish testified that Komrosky looked "disheveled," his hair was a mess, his pants were undone, and his shirt was untucked. Komrosky then walked into a different room across the hall. McLeish told Komrosky to get his gear and meet him downstairs.

         [¶8] After making contact with Komrosky, McLeish returned downstairs and waited for Komrosky in the entryway on the first floor. While waiting in the entryway, McLeish noticed a broken light bulb laying in the corner. McLeish testified that the broken bulb looked out of place. McLeish walked over and looked down at the bulb. He looked up and saw that the light in the entryway was on. McLeish opened the garage access door and saw the two lights in the garage were also on. McLeish did not see any broken or missing bulbs. McLeish bent over to take a closer look at the broken bulb and noticed it had a milky white residue on the inside of the glass. McLeish immediately recognized the broken bulb as a meth pipe.

         [¶9] McLeish got his cell phone and took pictures of the bulb and Komrosky's residence with his phone. After taking the pictures, McLeish took a piece of the broken glass. McLeish later conducted a field test on the glass, and the test came back presumptively positive for methamphetamine. Subsequently, McLeish applied for and was issued a search warrant for ...


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