State v. Danny Thomas McClain, Jr., 2024AP8, 4/8/25 District I (one-judge decision; ineligible for publication); case activity (including briefs)
COA affirms the circuit court’s order denying suppression of the evidence (field sobriety tests and preliminary breathalyzer tests), finding that police had reasonable suspicion to extend a traffic stop to investigate the defendant for additional criminal activity.
A City of Franklin police officer stopped McClain’s car because he saw that it had a taillight out and was swerving within its lane. The officer spoke with McClain and immediately noticed McClain’s eyes were bloodshot and the odor of alcohol was emanating from the car. The passenger, McClain’s girlfriend was crying and cursing. (¶2).
About 3 minutes later, the officer called for backup, explained to dispatch that he was trying to figure out what was going on between McClain and his girlfriend, and then discovered that McClain had a prior OWI. (¶4). When backup arrived 7 minutes after that, police separately questioned each about the circumstances, and the smell of alcohol persisted around McClain, although he denied drinking. (¶¶5-6).
The two provided mostly consistent information (with the exception of whether they had been drinking), and the officer asked McClain to exit his vehicle. He then asked if McClain had any weapons on him. McClain answered that he might have a knife in his pocket and consented to a search, during which the officer located a knife and a Suboxone tablet. The officer then began searching the car without permission. He asked for consent mid-search and McClain said he had no issue with it. (¶6).
Finally, after all of that and about 30 minutes in, the officer told McClain he would conduct field sobriety tests. McClain completed the tests, admitted to having consumed two drinks earlier, and then took a PBT, the result of which was 0.12. (¶7). McClain moved to suppress, arguing that the stop was unlawful, that the officer unlawfully extended the stop, and that the officer did not have reasonable suspicion of intoxication to request he perform field sobriety tests. The circuit court denied the motion, concluding that the initial stop was lawful based on the taillight, and that the officer had reasonable suspicion to extend the stop to investigate potential domestic violence and OWI. The court, however, ruled that the pat down and vehicle search were unlawful. (¶8). McClain then pleaded guilty to OWI 2nd. (¶9).
McClain does not renew his challenge to the stop on appeal. He argues that the results of the field sobriety and preliminary breathalyzer tests should have been suppressed because police did not have reasonable suspicion of domestic violence or OWI sufficient to justify extending the stop.
COA recites the relevant law for extensions of a stop as follows:
Generally, a routine traffic stop becomes unlawful if it is prolonged beyond the time reasonably required to complete the mission of issuing a ticket for the violation justifying the stop. Rodriguez v. United States, 575 U.S. 348, 350 (2015) (explaining that a traffic stop “exceeding the time needed to handle the matter for which the stop was made violates the Constitution’s shield against unreasonable seizures”). However, if, during the course of the stop, new facts come to the officer’s attention that support reasonable suspicion for a different criminal offense, officers can extend a stop to investigate the new leads. State v. Hogan, 2015 WI 76, ¶35, 364 Wis. 2d 167, 868 N.W.2d 124.
(¶13).
COA concludes that “from the moment [the officer] approached McClain’s vehicle to the moment he arrested McClain, the facts available to [him] justified extending the traffic stop to investigate possible OWI.” (¶16). The court notes the immediately apparent facts–heavy swerving within the lane, bloodshot eyes, smell of alcohol, that it was 2:44 a.m.–, as well as what occurred as the stop progressed–the prior OWI conviction, girlfriend’s admission to drinking earlier, and the persistence of the odor around McClain. (¶¶16-18).
The state concedes that the searches were illegal. However, there is nothing to suppress, because no evidence was gathered as a result of those searches. (¶¶19-20). Further, although the reasons McClain and his girlfriend gave for the swerving and their fight were consistent and possibly explained the situation, a possible innocent explanation does not defeat reasonable suspicion. (¶21).
