Defendant-appellant was convicted of possession of marijuana with intent to deliver, contrary to sec. 161.41(1m), Stats., following his plea of guilty. The purpose of this appeal is to review the trial court's order denying his motion to suppress the evidence against him, pursuant to sec. 971.31(10).

On March 18, 1974, defendant traveled from Madison to Tucson, Arizona, via Northwest Airlines. He took two suitcases with him. He returned to Madison from Tucson on March 19. The suitcases were not with him, apparently having been delayed en route. He filed a missing baggage report at the Madison Airport with the Northwest Airlines transportation agent. The agent agreed to contact defendant when the suitcases arrived.

The suitcases arrived on the evening of March 19. They were heavy and an airline baggage employee felt what appeared to be bricks through the soft sides. He brought the suitcases to the office of the Northwest Airlines transportation agent, who reported the matter to a policeman on duty at the airport, because he suspected the bags contained narcotics. The transportation agent testified his suspicions were aroused because two bags were taken on a one-day trip, and because of the weight of the bags and shape of the contents.

Dane county sheriff's Detective Thomas J. Kretschman, who was assigned to the Madison Metro Narcotics Squad, was sent to investigate the transportation agent's report. Kretschman testified that he lifted the suitcases and they appeared to be extremely heavy. He felt the outsides of the suitcases and could distinguish individual square objects. He claimed that the transportation agent pointed out to him an area where there was an opening in the zipper. He put his nose close to the opening and smelled marijuana and talcum powder and saw red paper and a little bit of green material between the red paper and the cellophane. He testified he recognized the green material as marijuana and the seeds as marijuana seeds.

When defendant came to pick up the suitcases, he was arrested. Subsequently, a complaint for a search warrant was executed by Kretschman's partner which related substantially the same facts as those which Kretschman testified to. The warrant was issued by Circuit Judge W. L. JACKMAN, and was executed at the office of the Metro Narcotics Squad late in the evening of March 19. The suitcases were found to contain 40 kilos of marijuana valued at over $20,000. The time of execution of the warrant was about three hours after defendant was arrested.

At the suppression hearing, the Northwest Airlines transportation agent testified that he did not point out any opening in the zipper of one of the bags to Detective Kretschman. He claimed that Kretschman spread the zipper apart with his fingers after another airline employee had pried part of the zipper open. This was done pursuant to Kretschman's request that the bag be opened.

The trial court ruled that Kretschman's search of the bag at the airport was illegal but the probable cause nevertheless existed for arresting the defendant. The court also ruled that the search warrant was invalid. Notwithstanding these rulings, the court refused to suppress the evidence, reasoning that the search followed a lawful arrest, and therefore could properly be conducted without a warrant.

CONNOR T. HANSEN, J.

The state concedes, as it should, that the trial court's conclusions that the airport search was illegal and the search warrant subsequently issued was invalid are supported by the evidence. The question on appeal is whether the evidence obtained by the search conducted at the office of the Madison Metro Narcotics Squad should be suppressed. Defendant argues that he was arrested because of the knowledge Detective Kretschman gained from the illegal search of the suitcase. Therefore, defendant argues his arrest is invalid and cannot support the subsequent search of the suitcase without a warrant. Alternatively, defendant argues that if the arrest was lawful, the police station search was not incident to, because it was not contemporaneous with, the arrest.

In Day v. State (1973), 61 Wis.2d 236, 212 N.W.2d 489, certiorari denied, 417 U.S. 914, 94 Sup. Ct. 2614, 41 L.Ed.2d 218, the plaintiff in error was arrested in Juneau county for driving after revocation of his driver's license. His improperly licensed station wagon was taken to a service station while he was incarcerated. Household goods in and upon the station wagon, observed in plain view by the Juneau county sheriff, turned out to be the fruits of a burglary in Marquette county. The vehicle was seized by Marquette county authorities, taken to Marquette county, and thoroughly searched without a warrant. A motion to suppress evidence seized in the course of that search was denied. We held the Juneau county sheriff, having discovered them in plain view, could have seized the articles without a warrant once he learned they were stolen. That conclusion rendered the later intrusion by Marquette authorities reasonable, notwithstanding that it was done without a warrant. The case stands for the proposition that if a warrantless seizure of evidence would have been authorized, a delay for a reasonable period of time will not invalidate a subsequent warrantless seizure.

Excluding knowledge gained as a result of the illegal search, Detective Kretschman had the following information at the time plaintiff in error was arrested: Defendant had taken the bags with him to Tucson the day before, and had returned to Madison the following afternoon. This suggested that his only purpose was an overnight visit. The bags were heavy and the shape of the contents was brick-like. This suggested to Kretschman, an experienced narcotics squad officer, that the bags contained bricks of marijuana. Significantly, the Northwest Airlines transportation agent also arrived at this conclusion. However, Kretschman had one more fact available to him which was not known to the transportation agent. When Kretschman checked the defendant's airline ticket and lost baggage tag, he discovered that the address given was that of a house which he had under surveillance. We hold there was probable cause to arrest defendant on a charge of possession of a controlled substance.

Having arrested defendant with the bags in his possession, the police were entitled to search his person and the articles in his possession in the vicinity of the arrest. Since the suitcases could have been searched without a warrant at the time defendant was arrested, he is in no position to complain because the search was delayed until after a warrant was obtained, even though the warrant subsequently proved to be invalid. We hold the three-hour delay in this case was reasonable and does not invalidate the search and seizure of evidence at the police station. By the Court. — Judgment affirmed.