State v. Danny Thomas McClain, Jr.

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
April 8, 2025
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2024AP8-CR Cir. Ct. No. 2019CT491

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

DANNY THOMAS MCCLAIN, JR.,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Milwaukee
County: JACK L. DAVILA, Judge. Affirmed.

¶1 GEENEN, J.1 Danny Thomas McClain, Jr., appeals from a
judgment convicting him, pursuant to a guilty plea, of operating while intoxicated,
as a second offense. McClain argues that police officers impermissibly extended

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(f) (2023-24).
All references to the Wisconsin Statutes are to the 2023-24 version unless otherwise noted.
No. 2024AP8-CR

the traffic stop beyond its initial justification without reasonable suspicion that any
additional criminal activity was afoot, and that police lacked reasonable suspicion
of intoxication to justify field sobriety and preliminary breathalyzer tests. For the
following reasons, we affirm.

BACKGROUND

¶2 At 2:44 a.m., City of Franklin Police Officer Adam Rogge stopped
McClain’s vehicle after observing that its left taillight was out and that the vehicle
was swerving within its lane of travel. As soon Officer Rogge reached the vehicle
and spoke with the driver, McClain, he noticed that McClain’s eyes were
bloodshot and smelled the odor of alcohol emanating from the vehicle. He also
noticed the passenger, identified as McClain’s girlfriend, crying and cursing,
visibly distressed.

¶3 During this initial encounter, Officer Rogge asked questions to
ascertain the facts of the situation. McClain explained that they were arguing
about text messages McClain had sent to an ex-girlfriend and that his girlfriend
tried to grab his phone from him which caused him to swerve.

¶4 Around three minutes into the encounter, Officer Rogge called for
backup. He explained to dispatch that he had two individuals arguing in the
vehicle and was “trying to figure out what’s going on” and wanted to make sure
nothing physical took place between McClain and his girlfriend. While waiting
for backup to arrive, Officer Rogge discovered that McClain had a prior OWI
conviction from several years earlier.

¶5 When backup arrived about seven minutes later, police asked
McClain’s girlfriend to exit the vehicle, and they were each separately questioned

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No. 2024AP8-CR

regarding their argument, relationship, and whether any physical altercation had
taken place, among other things. Officer Rogge noted that the odor of alcohol
persisted after McClain’s girlfriend left the vehicle. During this questioning,
McClain denied drinking while his girlfriend admitted to drinking heavily earlier
in the evening. Both McClain and his girlfriend denied any physical altercation,
and their answers generally corroborated one another in relevant respects.

¶6 Officer Rogge then asked McClain to exit his vehicle. After
McClain left the vehicle, the odor of alcohol persisted, and Officer Rogge
determined that the smell of alcohol was coming from McClain. While escorting
McClain to the front of his squad car, Officer Rogge asked McClain if he had any
weapons on him, and McClain responded that he might have a knife from work in
his pocket. Officer Rogge asked McClain if he could search his jacket, and
McClain consented to the search. Officer Rogge searched the pocket indicated by
McClain and recovered both a knife and a Suboxone tablet.2 While Officer Rogge
continued to speak with McClain, his partner spent time confirming McClain’s
prescription for Suboxone.3 Officer Rogge then opened the passenger door to
McClain’s vehicle and began searching it without permission. Officer Rogge then
asked McClain, mid-search, if McClain had any issue with Officer Rogge
verifying that there was nothing else in the vehicle. McClain said he had no issue,
so Officer Rogge continued searching the vehicle and found no evidence of open
intoxicants or other illegal items.

2
Suboxone is a narcotic that contains Buprenorphine, a schedule III narcotic. WIS.
STAT. § 961.18(5m). Under WIS. STAT. § 961.41(3g)(b), possession of Buprenorphine without a
prescription is a misdemeanor offense.
3
Police were able to confirm that McClain possessed a valid prescription for Suboxone,
and he was not charged with a crime related to his possession of the Suboxone tablet.

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No. 2024AP8-CR

¶7 Upon the completion of the pat down and vehicle search, roughly
thirty minutes had elapsed from the beginning of the traffic stop, and Officer
Rogge told McClain he would conduct field sobriety tests. Officer Rogge
continued to smell the odor of alcohol emanating from McClain as he completed
these tests. McClain then admitted that he had consumed two alcoholic drinks
earlier in the evening. After conducting field sobriety tests, Officer Rogge
administered a preliminary breath test; the result was 0.12, and Officer Rogge
arrested McClain.

¶8 McClain moved to suppress, arguing that the stop itself was
unlawful, that the stop was unlawfully extended beyond its initial justification, and
that Officer Rogge did not have reasonable suspicion of intoxication to request
McClain perform field sobriety tests. After the suppression hearing, the circuit
court concluded that the initial stop was lawful based on the defective taillight and
that there was reasonable suspicion to extend the initial stop to investigate possible
domestic violence and OWI. While the circuit court ruled that Officer Rogge’s pat
down of McClain and the search of McClain’s vehicle were unlawful and
suppressed evidence resulting from those searches, the circuit court concluded that
Officer Rogge had reasonable suspicion to extend the stop to investigate the
domestic violence concerns and to investigate his suspicion that McClain was
operating a vehicle while intoxicated.

¶9 McClain subsequently pleaded guilty to a charge of operating while
intoxicated, as a second offense, and was sentenced to five days in jail for a time
served disposition.

¶10 McClain appeals.

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No. 2024AP8-CR

DISCUSSION

¶11 “Our review of an order granting or denying a motion to suppress
evidence presents a question of constitutional fact” which we resolve by engaging
in a two part inquiry. State v. Tullberg, 2014 WI 134, ¶27, 359 Wis. 2d 421, 857
N.W.2d 120 (citation omitted). “First, we review the circuit court’s findings of
fact, and uphold them unless they are clearly erroneous.” State v. Martin, 2012
WI 96, ¶28, 343 Wis. 2d 278, 816 N.W.2d 270 (citation omitted). “Second, we
review de novo the application of constitutional principles to those facts.” Id.
(citation omitted).

¶12 We begin with a discussion of the relevant constitutional principles.
The Fourth Amendment to the United States Constitution and article I, section 11
of the Wisconsin Constitution protect against unreasonable searches and seizures.
State v. Eason, 2001 WI 98, ¶16, 245 Wis. 2d 206, 629 N.W.2d 625. A traffic
stop constitutes a seizure of the vehicle’s occupants and must be supported by
reasonable suspicion. Delaware v. Prouse, 440 U.S. 648, 653-54 (1979). “The
crucial question is whether the facts of the case would warrant a reasonable police
officer, in light of his or her training and experience, to suspect that the individual
has committed, was committing, or is about to commit a crime.” State v. Post,
2007 WI 60, ¶13, 301 Wis. 2d 1, 733 N.W.2d 634. “[T]hat is, ‘the police officer
must be able to point to specific and articulable facts which, taken together with
rational inferences from those facts, reasonably warrant’” the traffic stop. State v.
Houghton, 2015 WI 79, ¶21, 364 Wis. 2d 234, 868 N.W.2d 143 (quoting Terry v.
Ohio, 392 U.S. 1, 21 (1968)). Reasonable suspicion is a “low” standard, and
“[t]he information necessary to establish reasonable suspicion can be less in both
content and reliability than the information needed to establish probable cause.”
Eason, 245 Wis. 2d at ¶19.

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No. 2024AP8-CR

¶13 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.

¶14 On appeal, the parties do not dispute that the defective taillight
provided reasonable suspicion for the initial stop. The issue is whether Officer
Rogge lawfully extended the stop, which requires that he had reasonable suspicion
to extend the stop due to new facts that came to his attention while investigating
the taillight violation.

¶15 McClain contends 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. McClain further contends that, even if there was justification
to extend the traffic stop to investigate possible domestic violence and OWI, the
pat down and vehicle search unlawfully extended the stop because there was no
reasonable suspicion to justify the pat down and there was no probable cause or
warrant to justify the vehicle search. Finally, McClain argues that even if the
extensions and searches were lawful, Officer Rogge still lacked reasonable
suspicion to administer the field sobriety and preliminary breathalyzer tests. We
disagree.

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No. 2024AP8-CR

¶16 We conclude that, from the moment Officer Rogge approached
McClain’s vehicle to the moment he arrested McClain, the facts available to
Officer Rogge justified extending the traffic stop to investigate possible OWI. See
Id., ¶36. In determining whether reasonable suspicion for OWI exists, courts have
considered, among other factors: (1) an officer’s training and experience, (2) prior
OWI convictions, (3) the odor of intoxicants inside the vehicle, and (4) an
admission to consuming alcohol. State v. Adell, 2021 WI App 72, ¶¶19-24, 399
Wis. 2d 399, 966 N.W.2d 115.

¶17 In this case, although it was not the reason for stopping McClain in
the first place, Officer Rogge had observed McClain “heavily swerving” within his
lane of travel. Officer Rogge testified that such swerving, in his experience, was
consistent with either a medical emergency or impairment. As soon as Officer
Rogge reached the vehicle and spoke with McClain, he noticed that McClain’s
eyes were bloodshot, and Officer Rogge smelled the odor of alcohol emanating
from the vehicle. At this point, based on Officer Rogge’s training and experience
with respect to McClain’s heavy swerving, the time of day (around 2:44 a.m..),
McClain’s bloodshot eyes, and the odor of alcohol emanating from the vehicle, we
conclude that reasonable suspicion of OWI existed to justify extending the traffic
stop. See id. ¶¶19-24.

¶18 Moreover, the reasonableness of the suspicion that McClain was
operating his vehicle while intoxicated only grew stronger as Officer Rogge’s
investigation continued. While waiting for backup to arrive, Officer Rogge
discovered that McClain had a prior OWI conviction from several years earlier.
Additionally, despite McClain’s and his girlfriend’s assertions that only she had
been drinking alcohol that night, Officer Rogge observed that the odor of alcohol
persisted in the vehicle even after McClain’s girlfriend had exited and was talking

7
No. 2024AP8-CR

to Officer Rogge’s partner. Then, after Officer Rogge asked McClain to exit his
vehicle, the odor of alcohol persisted, and Officer Rogge determined that the smell
of alcohol was coming from McClain. We have no trouble concluding that these
facts and circumstances constituted an unbroken chain of reasonable suspicion that
McClain was operating his vehicle while intoxicated, justifying both the extension
of the initial stop and the field sobriety and preliminary breathalyzer tests.

¶19 We now turn McClain’s arguments as to the vehicle and pat down
searches. With respect to the vehicle search, a search that the State concedes was
illegal, we agree with the circuit court that the appropriate remedy is to suppress
“whatever fruits came from the search of the car” and not all subsequent evidence
gathered after (and not resulting from) the illegal search. This is because although
the search was unlawful, reasonable suspicion that McClain was operating his
vehicle while intoxicated remained, and reasonable suspicion, not probable cause
or a warrant to search a vehicle, is required to extend a traffic stop beyond its
initial justification. See Hogan, 364 Wis. 2d 167, ¶35; Eason, 245 Wis. 2d 206,
¶19. Moreover, McClain does not explain how this admittedly illegal vehicle
search extended beyond the new mission of investigating a possible OWI, and he
does not support with authority his assertion that an illegal search conducted with
reasonable suspicion (when probable cause or search warrant was required) taints
all subsequently gathered evidence, even evidence that was not discovered as a
result of the illegal search. In our view, the circuit court correctly suppressed any
evidence gathered as a result of the illegal search and nothing more.

¶20 For identical reasons, we reach the same conclusion with respect to
the pat down search. Assuming that the pat down search was unlawful, we agree
with the circuit court that the correct remedy is to suppress the evidence resulting
from that illegal search. McClain likewise fails to explain why the remedy for the

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No. 2024AP8-CR

illegal pat down search should extend beyond the fruits of that search given that
reasonable suspicion of OWI existed for the duration of the traffic stop.4

¶21 Finally, McClain argues that the reasons given by him and his
girlfriend explain why McClain was swerving in his lane and who was responsible
for the odor of alcohol, therefore any reasonable suspicion of OWI dissipated and
could not justify extending the stop. We reject this argument. “Although officers
sometimes will be confronted with behavior that has a possible innocent
explanation, a combination of behaviors—all of which may provide the possibility

4
The State argues that the circuit court’s conclusion that the pat down search was
unlawful was clearly erroneous and should be corrected. Under State v. Alles, 106 Wis. 2d 368,
390, 316 N.W.2d 378 (1982), the State need not cross-appeal to obtain review of an adverse
ruling if all it seeks is to raise an error that, if corrected, would sustain the judgment.

To the extent reviewing the legality of the pat down search is necessary to sustain the
circuit court’s order, we conclude that the pat down search was lawful. “Because traffic stops are
‘especially fraught with danger to police officers,’ the Supreme Court has explained that ‘an
officer may need to take certain negligibly burdensome precautions in order to complete his [or
her] mission safely.’” State v. Wright, 2019 WI 45, ¶25, 386 Wis. 2d 495, 926 N.W.2d 157
(citation omitted). In State v. Floyd, 2017 WI 78, ¶28, 377 Wis. 2d 394, 898 N.W.2d 560, our
supreme court held that a police officer may ask about the presence of weapons during a traffic
stop without violating the Fourth Amendment.

Here, Officer Rogge asked McClain if he had any weapons on him, and McClain
responded that he might have a knife from work in his pocket. Officer Rogge asked McClain if
he could search his jacket, and McClain consented to the search. The search produced both a
knife and a Suboxone tablet. Our case law applied to these facts makes clear that Officer Rogge
was permitted to ask about the presence of weapons and search McClain’s pocket after McClain
identified a weapon on his person and consented to the search. See State v. Brown, 2020 WI 63,
¶¶27-28, 392 Wis. 2d 454, 945 N.W.2d 584; Wright, 386 Wis. 2d 495, ¶¶17, 24-25, 31-33;
Floyd, 377 Wis. 2d 394, ¶28-30.

9
No. 2024AP8-CR

of innocent explanation—can give rise to reasonable suspicion.” Hogan, 364
Wis. 2d 167, ¶36.5

CONCLUSION

¶22 Accordingly, we conclude that the circuit court correctly denied
McClain’s motion to suppress the evidence of his field sobriety and preliminary
breathalyzer tests.

By the Court.—Judgment affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)4.

5
We note before concluding that the parties spent significant time briefing whether there
existed reasonable suspicion of a domestic violence offense that would justify the extension of the
traffic stop. We do not address this argument because we conclude that reasonable suspicion of
OWI existed throughout the stop, justifying its extension. Water Well Solutions Serv. Grp., Inc.
v. Consolidated Ins. Co., 2016 WI 54, ¶33 n.18, 369 Wis. 2d 607, 881 N.W.2d 285 (explaining
that we should decide cases “on the narrowest grounds possible”).

10