from the District Court of Burleigh County, South Central
Judicial District, the Honorable John W. Grinsteiner, Judge.
R. Erickson, Burleigh County Special Assistant State's
Attorney, Washburn, ND, for plaintiff and appellee.
Michael R. Hoffman, Bismarck, ND, for defendant and
VandeWalle, Chief Justice.
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.
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.
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.
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.
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.
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.
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
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
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 ...