Appeal from a judgment of the Circuit Court for La Crosse County: Michael Kirchman, Judge.
Gartzke, P.j., Bablitch, J. and Dykman, J.
The opinion of the court was delivered by: Dykman
Defendant appeals from his conviction for possession of cocaine with intent to deliver in violation of sec. 161.41(1m) (b), Stats. He argues that no probable cause existed for his arrest or for the issuance of a search warrant to search his suitcase. He also claims that the trial court lacked jurisdiction to impose sentence because no judgment of conviction was entered pursuant to sec. 972.13, Stats., *fn1 prior to sentencing and that the trial court abused its discretion by sentencing him to three years' imprisonment. We affirm the trial court's denial of defendant's motion to dismiss due to an illegal arrest and to suppress evidence due to an insufficiently supported search warrant. We reverse and remand for sentencing because we conclude that the trial court lacked jurisdiction to sentence defendant. We do not reach the issue of whether the trial court abused its discretion in sentencing defendant.
An unnamed police informant told Department of Justice agent Schultz that a drug transaction would occur on February 8, 1980, at the Ramada Inn in Madison. Schultz observed Daniel Skaff and an individual, later identified as defendant, enter a car in the Ramada Inn parking lot. After defendant left the Inn, Schultz saw Skaff approach another unidentified police informant. Soon afterwards, that informant gave Schultz some white powder which he had obtained from Skaff. Schultz field tested the powder and determined that it was cocaine. The informant indicated that he had made drug purchases from Skaff in the past. Skaff told the informant that one of his suppliers was "Joe" who would be coming to La Crosse via public transportation with more controlled substances in the early morning hours of March 1st.
La Crosse police officers checked train, bus and plane schedules into La Crosse and determined that the only public transportation arriving in La Crosse during the early morning hours of March 1st was an Amtrak train. Several police officers went to the Amtrak station to meet the 3:53 a.m. train. Schultz identified defendant as he left the train as the individual he saw with Skaff in Madison. A La Crosse police officer approached defendant and said "Joe." Defendant turned around, and he was arrested. The police officers did not have a warrant for his arrest.
Defendant was searched and two grams of a white substance, which was field tested and determined to be cocaine, were found in his boot. A search warrant was obtained to search the suitcase defendant was carrying. After opening the suitcase, the officers found eleven ounces of cocaine, having a street value of between $19,000 and $50,000.
The trial court denied defendant's motions to dismiss for an illegal arrest and to suppress the cocaine as a result of an insufficiently supported search warrant. Defendant was convicted after trial to the court on stipulated facts. He was sentenced to three years' imprisonment on May 27, 1981, but the judgment of conviction was not filed until January 8, 1982.
Defendant claims that the officers who arrested him without a warrant lacked probable cause to do so. When the facts are undisputed, as they are in this case, probable cause to arrest is a question of law which we review independently on appeal. State v. Drogsvold, 104 Wis. 2d 247, 262, 311 N.W.2d 243, 250 (Ct. App. 1981).
To make an arrest without a warrant, the police officer must have evidence that would lead a reasonable officer to believe that defendant probably committed an offense. State v. Welsh, 108 Wis. 2d 319, 329, 321 N.W.2d 245, 251 (1982). It is only necessary that the information available to the officer leads him or her to conclude that guilt is more than a possibility. Id. at 329-30, 321 N.W.2d at 251. That Conclusion may be based on hearsay information. Id. at 330, 321 N.W.2d at 251.
Both defendant and the state rely on the two-pronged test from Aguilar v. Texas, 378 U.S. 108, 114-15 (1964), for assessing the truthfulness and reliability of hearsay information used to establish probable cause: Aguilar requires the officer to specify (1) the underlying circumstances from which he or she concludes that the informant is reliable, and (2) the reliability of the underlying circumstances or manner in which the informant obtained his or her information. State v. Cheers, 102 Wis. 2d 367, 395, 306 N.W.2d 676, 688 (1981).
In Illinois v. Gates, U.S. , 51 U.S.L.W. 4709, 4716 (1983), the Supreme Court abandoned the Aguilar test:
e conclude that it is wiser to abandon the "two-pronged test" established by our decisions in Aguilar and Spinelli. In its place we reaffirm the totality of the circumstances analysis that traditionally has informed probable cause determinations. . . . We are convinced that this flexible, easily applied standard will better achieve the accommodation of public and private interests that the Fourth Amendment requires than does the approach that has developed from Aguilar and Spinelli. [Footnote omitted.]
Under the circumstances, the police had sufficient information to reasonably conclude that defendant was committing a crime and that the informants working with them were reliable and had obtained their information in a reliable manner. The officers were working with Department of Justice agent Schultz, who obtained his information from two police informants. One informant told Schultz of an intended sale of drugs between defendant and Skaff at the Ramada Inn on February 8, 1980. Schultz observed the encounter between Skaff and defendant, thus corroborating the informant's information. The other informant contacted Skaff and purchased cocaine from him. The informant also told Schultz that Skaff told him ...