State v. Komrosky, 20190065

Decision Date12 December 2019
Docket NumberNo. 20190065,20190065
Citation936 N.W.2d 82
Parties STATE of North Dakota, Plaintiff and Appellee v. Kerry Charles KOMROSKY, Defendant and Appellant
CourtNorth Dakota Supreme Court

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.

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.


[¶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 Komrosky’s residence where other contraband, including methamphetamine and drug paraphernalia, was seized.


[¶10] Our standard for reviewing a district court’s decision on a motion to suppress evidence is well established:

[W]e give deference to the district court’s findings of fact and we resolve conflicts in testimony in favor of affirmance. State v. Tognotti , 2003 ND 99, ¶ 5, 663 N.W.2d 642. We "will not reverse a district court decision on a motion to suppress ... if there is sufficient competent evidence capable of supporting the court’s findings, and if the decision is not contrary to the manifest weight of the evidence."
State v. Gefroh , 2011 ND 153, ¶ 7, 801 N.W.2d 429. Questions of law are fully reviewable on appeal, and whether a finding of fact meets a legal standard is a question of law. Id.

State v. Hyde , 2017 ND 186, ¶ 6, 899 N.W.2d 671 (citing State v. Reis , 2014 ND 30, ¶ 8, 842 N.W.2d 845 ).


[¶11] Under the Fourth Amendment of the United States Constitution and Art. I, § 8, of the North Dakota Constitution, warrantless searches of homes are presumptively unreasonable. State v. Stewart , 2014 ND 165, ¶ 12, 851 N.W.2d 153. However, a warrantless search is not constitutionally unreasonable if an exception to the warrant requirement, such as exigent circumstances, applies. Id. We have defined exigent circumstances as "an emergency situation requiring swift action to prevent imminent danger to life or serious damage to property, or to forestall the imminent escape of a suspect or destruction of evidence." State v. Nagel , 308 N.W.2d 539, 543 (N.D. 1981) (quoting State v. Page , 277 N.W.2d 112, 117 (N.D. 1979) ).

[¶12] We have referred to this warrant exception both as exigent circumstances and as the emergency exception. Stewart , 2014 ND 165, ¶ 13, 851 N.W.2d 153 (citing State v. Matthews , 2003 ND 108, ¶ 27, 665 N.W.2d 28 ). "Exigent circumstances commonly refers to situations in which law enforcement suspects criminal activity but there is ‘no time for them to secure a warrant.’ " State v. Hyde , 2017 ND 186, ¶ 8, 899 N.W.2d 671 (quoting Michigan v. Tyler , 436 U.S. 499, 509, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978) ). "The emergency exception may be considered a subset of exigent circumstances in which law enforcement has an objectively reasonable basis to believe someone is ‘seriously injured or threatened with such injury.’ " Hyde , at ¶ 8 (quoting Michigan v. Fisher , 558 U.S. 45, 47-48, 130 S.Ct. 546, 175 L.Ed.2d 410 (2009) ). To the extent the analysis is distinct, the search of Komrosky’s home presents an application of the emergency exception and not exigent circumstances. See State v. Huber , 2011 ND 23, ¶ 13, 793 N.W.2d 781.

[¶13] The emergency exception "does not require probable cause [of a crime] but must be actually motivated by a perceived need to render aid or assistance." State v. Hyde , 2017 ND 186, ¶ 9, 899 N.W.2d 671 (quoting Huber , 2011 ND 23, ¶ 13, 793 N.W.2d 781 ). Three requirements must be met for the emergency exception to apply:

(1) The police must have reasonable grounds to believe that there is an emergency at hand and an immediate need for their assistance for the protection of life or property.
(2) The search must not be primarily motivated by intent to arrest and seize evidence.
(3) There must be some reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched.

Stewart , 2014 ND 165, ¶ 13, 851 N.W.2d 153. The burden is on the State to prove that each of these three requirements existed at the time of the warrantless entry into a home. State v. DeCoteau , 1999 ND 77, ¶ 14, 592 N.W.2d 579.

[¶14] On appeal, Komrosky only challenges whether McLeish had reasonable...

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