          F I L E D 12/12/19 B Y C L E R K O F S U P R E M E C O U R T


                  IN THE SUPREME COURT
                  STATE OF NORTH DAKOTA

                                2019 ND 300

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



                                No. 20190065

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

AFFIRMED.

Opinion of the Court by VandeWalle, Chief Justice.

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.
                          State v. Komrosky
                             No. 20190065


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.



                                    1
[¶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.

                                     2
[¶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.

                                     II

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

                                     3
      [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).

                                      III

[¶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 (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


                                      4
Michigan v. Fisher, 558 U.S. 45, 47-48 (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 grounds to believe there was an emergency at hand and an
immediate need for his assistance for the protection of life or property. See
Stewart, 2014 ND 165, ¶ 13, 851 N.W.2d 153. For the first requirement, we
apply an objective standard of reasonableness: “would the facts available to
the officer at the moment of [the entry] warrant a man of reasonable caution
in the belief that the action taken was appropriate?” Hyde, 2017 ND 186, ¶
11, 899 N.W.2d 671 (quoting Matthews, 2003 ND 108, ¶ 33, 665 N.W.2d 28).
An officer’s belief that an emergency exists “must be grounded in empirical
facts rather than subjective feelings.” Matthews, at ¶ 29. Our cases applying


                                     5
the emergency exception have relied upon direct and contemporaneous
observations to establish an immediate need for assistance to protect life or
property. Hyde, at ¶ 14 (and cases cited therein). Factors we have
considered include the lack of reliability and vagueness of the information
provided to law enforcement, the delay in response by law enforcement, and
observations by law enforcement at the scene. See id. at ¶¶ 19-22; State v.
Karna, 2016 ND 232, ¶ 10, 887 N.W.2d 549; Stewart, 2014 ND 165, ¶ 14,
851 N.W.2d 153; State v. Morin, 2012 ND 75, ¶ 10, 815 N.W.2d 229; State
v. Mitzel, 2004 ND 157, ¶¶ 22-23, 685 N.W.2d 120; DeCoteau, 1999 ND 77,
¶¶ 17-18, 592 N.W.2d 579; City of Fargo v. Ternes, 522 N.W.2d 176, 178
(N.D. 1994).

[¶15] Komrosky argues that State v. Hyde is dispositive of this case. In
Hyde, law enforcement officers entered Hyde’s residence in response to a
report that Hyde may be suicidal. 2017 ND 186, ¶ 2, 899 N.W.2d 671. At
8:41 a.m. Hyde’s brother had called the Ward County Sheriff’s Department
on the non-emergency dispatch line, rather than calling 911, to report that
eight hours prior, at about 12:45 a.m., Hyde had “been calling his mother
crying with suicidal ideations.” Id. The dispatcher had recorded the request
for a welfare check as “Status: Routine, Priority: Low.” Id. Nearly two hours
after Hyde’s brother called, police deputies went to Hyde’s residence to
conduct a welfare check. Id. at ¶ 3. The deputies first talked to Hyde’s
landlord, who stated that he had seen Hyde the night before and there was
no indication that Hyde had shown any signs of distress. Id. The deputies
then began knocking on the door to Hyde’s residence. Id. After knocking for
nine minutes repeatedly without an answer, the deputies entered Hyde’s
residence through the unlocked door. Id. Upon entering the residence and
searching for Hyde, the deputies found a marijuana plant on the floor of a
bedroom. Id. at ¶ 4.

[¶16] A majority of this Court held the evidence available to the deputies at
the time of entry did not establish reasonable grounds to believe there was
an emergency and an immediate need for assistance to protect Hyde’s life.
Id. at ¶ 19. First, the information available to the officers was remote, and
the officers had no first-hand corroboration. Id. at ¶ 20. Nothing the officers

                                      6
directly observed corroborated Hyde’s alleged “suicidal comments.” Id. To
the contrary, the landlord’s comments that Hyde did not seem distressed
contradicted the information from Hyde’s brother. Id. Second, the report of
“suicidal comments” was vague and lacked sufficient detail to support a
reasonable belief that there was an ongoing emergency. Id. at ¶ 21. The
deputies were not informed about a weapon or specific threat, nor were they
told a suicide attempt was imminent. Id. As this Court reemphasized, there
must be an immediate need for assistance for the warrant exception to
apply. Id. Third, the delay in reporting the comments to law enforcement
and the delay in response by the deputies show that no one treated Hyde’s
comments as an emergency. Id. at ¶ 22. The passage of time in reporting
Hyde’s comments, response by law enforcement, and entry into Hyde’s home
substantially reduced the likelihood there remained an immediate need for
assistance. Id.

[¶17] Hyde is distinguishable from the facts of this case. McLeish had a
reasonable basis to believe that there was an ongoing emergency before
entering Komrosky’s home. The district court found that McLeish was
concerned Komrosky may have been ambushed or that Komrosky may have
harmed himself. McLeish’s concerns stemmed from Komrosky’s role as a
police officer and from McLeish’s first-hand concerns about Komrosky’s
mental state. Komrosky had recently lost his “dream job” on the Metro Area
Narcotics Task Force, and McLeish believed that Komrosky was in a “dark
place” at the time. The district court found that being a police officer is an
inherently dangerous job that can be mentally and emotionally taxing. See
Karna, 2016 ND 232, ¶ 11, 887 N.W.2d 549. Police officers are exposed to
dangerous situations and people who may want to hurt them on a daily
basis. These findings provide a reasonable basis to believe that there was
an ongoing emergency.

[¶18] McLeish was not relying on information from a remote source; his
observations were direct. After several attempts, Komrosky was
unreachable by a dispatcher or McLeish after his extended lunch break.
Upon arrival, McLeish observed Komrosky’s patrol vehicle parked parallel
to his garage with the keys in the ignition and the vehicle running, and with

                                      7
the driver’s door ajar and unlocked. This was contrary to standard practice
that an officer keep their patrol vehicle, which contains numerous firearms
and electronics, secured or turned off if not being used for extended periods
of time. McLeish’s concern was further heightened after knocking on
Komrosky’s garage door and front door, ringing the doorbell, and yelling
Komrosky’s name for several minutes with no answer or response.
Komrosky’s dogs were also jumping and barking. Despite the considerable
noise and repeated attempts to make contact, neither McLeish nor the
dispatcher were able to contact Komrosky.

[¶19] There was also no delay in response. In Hyde, the Court reasoned that
the deputies knocking for several minutes before entering the residence
showed the deputies lacked a genuinely reasonable belief there was an
emergency. Id. at ¶ 24. However, we stated that knocking does not preclude
a finding of emergency, but that each additional delay lends more weight to
the conclusion that any need for assistance is not an immediate need. Id.
Unlike the deputies in Hyde, McLeish responded immediately after
learning Komrosky had not reported back from his extended lunch period.
After he was unable to make contact with Komrosky, McLeish treated the
situation as an emergency. He did not speak to anyone else or wait for an
extended period before entering Komrosky’s residence to check on his well-
being. There was no significant or meaningful delay in time from when
McLeish began to knock to when he entered Komrosky’s residence. Given
McLeish’s other observations, McLeish’s knocking for several minutes
before entry does not preclude McLeish from reasonably believing that
there was an ongoing emergency or a need to render immediate assistance.

[¶20] Based on empirical facts, there were reasonable grounds for McLeish
to believe there was an emergency at hand and an immediate need for his
assistance. McLeish’s direct and contemporaneous observations support
McLeish’s entry into Komrosky’s home. McLeish’s entry was justified under
the emergency exception to the warrant requirement.




                                     8
                                     IV

[¶21] In the alternative, Komrosky argues that McLeish exceeded the scope
of the emergency by staying in Komrosky’s residence after he made contact
with Komrosky and, therefore, the evidence seized was not in plain view.
This Court has never explicitly declared when a search invoked under the
emergency exception must end. However, in one of the first cases this Court
decided discussing the emergency exception, Justice Levine, writing
separately, stated: “The emergency exception . . . must be strictly construed
to keep the intrusion as limited as possible . . . . After the emergency has
ended, so too does the right to search without a warrant.” Lubenow v. N.D.
State Highway Comm’r, 438 N.W.2d 528, 533-34 (N.D. 1989) (Levine, J.,
concurring specially). Even at its inception, the concern with the emergency
exception was additional warrantless searches stemming from law
enforcement’s intrusion justified under the exception.

[¶22] McLeish did not conduct an additional search after making contact
with Komrosky. He stood in the entryway and waited for Komrosky to come
downstairs. Such an act is not one that constitutes an additional search or
exceeds the scope of the emergency exception.

[¶23] Under the plain view doctrine, if law enforcement officers are lawfully
in a position from which they view an object, whose incriminating character
is immediately apparent, and the officers have a lawful right of access to
the object, they may seize it without a warrant. State v. Wamre, 1999 ND
164, ¶ 16, 599 N.W.2d 268 (citing Minnesota v. Dickerson, 508 U.S. 366, 375
(1993); Horton v. California, 496 U.S. 128, 135-36 (1990)). Officers may seize
contraband or evidence of a crime that is in plain view during a warrantless
search if “the items are not items for which the searching officer had
probable cause to believe were in the area being searched.” State v.
Kottenbroch, 319 N.W.2d 465, 471 (N.D. 1982); see State v. Huber, 2011 ND
23, ¶ 19, 793 N.W.2d 781. An officer’s initial intrusion must be supported
by one of the recognized exceptions to the warrant requirement, and the
discovery must be inadvertent and within the proper scope of the search.
Id. A law enforcement officer need not be certain that a substance is


                                      9
contraband before he may seize it and submit it for testing so long as the
officer lawfully views the property and there is probable cause to associate
the property with criminal activity. State v. Gelvin, 318 N.W.2d 302, 307
(N.D. 1982).

[¶24] The facts in Arizona v. Hicks are analogous to the facts of this case.
480 U.S. 321 (1987). In Hicks, officers entered an apartment under the
exigent circumstances exception to the warrant requirement. Id. at 323.
Once in the apartment, officers examined stereo equipment they suspected
might be stolen. Id. The officers moved the stereo equipment to obtain the
serial numbers. Id. The Supreme Court held that the movement of the
stereo equipment to inspect the serial numbers was a search that required
independent probable cause. Id. at 325-26 (“[T]aking action, unrelated to
the objectives of the authorized intrusion, which exposed to view concealed
portions of the apartment or its contents, did produce a new invasion of
respondent’s privacy unjustified by the exigent circumstance that validated
the entry.”). In interpreting Hicks, we have stated: “Under Hicks, even an
object in plain view can be the subject of a search requiring probable cause
to examine it further, if the object or area in which it is located bears no
relation to the justification for police presence in the first place.” Wamre,
1999 ND 164, ¶ 15, 599 N.W.2d 268; see also State v. Runck, 534 N.W.2d
829, 834 (N.D. 1995).

[¶25] Komrosky argues the broken bulb was not in plain view because
McLeish first checked the entryway and the garage to see if any bulbs were
missing, and because he walked over to the bulb and bent over to get a
better look at it. Our cases on the plain view doctrine do not support this
argument. If an officer views the property and has probable cause to
associate it with criminal activity, an officer may take a closer look at an
object in plain view to determine if it is contraband. See State v. Koskela,
329 N.W.2d 587, 591-92 (N.D. 1983). This is precisely what McLeish did
when viewing the light bulb. McLeish did not move or touch any piece of the
broken bulb until after he realized it was drug paraphernalia. He only bent
down to get a better look at it. Furthermore, the fact that McLeish looked
to see whether any bulbs were missing before he did so is not dispositive.

                                     10
McLeish testified at the suppression hearing that he would have recognized
what the bulb was even if he had not first looked at the bulbs in the
entryway or in the garage. Therefore, McLeish’s inspection of the broken
bulb was not an independent search requiring probable cause. McLeish was
lawfully in a position to view the bulb, and the evidence seized was in plain
view.

                                     V

[¶26] The criminal judgment is affirmed.

[¶27] Gerald W. VandeWalle, C.J.
      Daniel J. Crothers
      Lisa Fair McEvers
      Jerod E. Tufte
      Jon J. Jensen




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