Former Burleigh deputy loses plain view appeal, Burleigh County Sheriff’s Dept. seized evidence lawfully
The former Burleigh deputy convicted of stealing meth from evidence has lost his appeal.
Thirty-two-year-old Kerry Komrosky pleaded guilty to possession of a controlled substance, theft of property, and possession of drug paraphernalia. He appealed the case to the state Supreme Court and Thursday an opinion showed Komrosky’s judgement was affirmed by justices.
In October of last year, Komrosky filed a conditional plea, allowing him to reserve his right to appeal the District Courts denial to suppress evidence of a broken glass pipe that was found during a welfare check.
Nearly three pounds of methamphetamine and 47 grams of cocaine were found in his home after law enforcement conducted a search warrant in the spring of 2018.
Deputies with the Burleigh County Sheriff’s Department made a welfare check on Komrosky when he didn’t clock back in after a more than two-hour lunch break.
Komrosky’s sergeant went to his home and found no sign of the former deputy except for his squad car that was running outside. The sergeant did an emergency walk in and found Komrosky on the third floor. Komrosky says he was sleeping at the time and didn’t hear the door.
The sergeant told Komrosky to get dressed and come downstairs. Records show the sergeant went downstairs and that’s when he found the broken glass with a cloudy substance on it.
The States Attorney on the case, Ladd Erickson says there was probable cause and it was a plain view search. Erickson says the sergeant used an abundance of caution and protection for the defendant to try to verify if the broken glass pipe with residue was in fact what he thought it was.
Komrosky’s attorney, Michael Hoffman, says the deputy had finished his welfare check when he found the pipe. In January, Hoffman said there wasn't any reasonable suspicion to justify seizure of the broken glass and the search warrant wasn't supported by probable cause.
During the hearing, the district court shut this down saying the broken pipe was in plain view, giving officers the right to access an object and seize it without a warrant.
In the opinion released Thursday, justices said the sergeants inspection of the broken bulb was not an independent search requiring probable cause. Justices say it's lawful and the evidence was seized in plain view.