People v. Valot , 33 Mich. App. 49 ( 1971 )

Churchill, J.

Defendant, Harold Valot, was charged with having had possession and control of marijuana contrary to the provisions of MCLA § 335.153 (Stat Ann 1957 Rev § 18.1123). He was convicted by nonjury trial. The judgment of sentence refers to possession of marijuana. The trial judge’s recited findings at the conclusion of the trial make it clear that the conviction was based on findings of control. Possession and control are separate offenses under the statute. People v. Harper (1962), 365 Mich 494.

Defendant asserts on appeal that the evidence was obtained by a search and seizure in violation of his constitutional rights,1 and further that there was no evidence of his possession or control of the drug to support the conviction.

Defendant’s objection to the introduction of seized drugs at the preliminary examination was overruled. After he was bound over to circuit court for trial, his timely motion to suppress the same evidence was denied. No separate testimonial hearing was requested or held, and we surmise that the motion was based on and considered on the preliminary examination transcript.

Three Redford Township policemen went to a motel in their township in response to a call from a motel employee. Upon answering they learned from the motel manager that he was concerned about the continued use of one of the motel rooms by a number of “hippie-type people”. The room had been rented about three days before. The rent was paid until noon of that day. The police were called and arrived in the early afternoon. The officers examined the registration card and learned that the motel room was registered in the name of Harold Valot. One officer recognized the name as the name of an escapee from the Detroit House of Correction. They learned that an auto, identified on the registration card, was parked in the motel parking lot. They learned that a man answering Valot’s description had been seen entering the room. They were unable to learn if he had left the room. The police were informed that efforts to contact the room by motel employees by telephone were unsuccessful.

The policemen went to the room with the motel manager. The manager knocked on the door. There was no response. The manager opened the door with a key. The manager and the policemen walked in and observed five persons in the room, all apparently asleep on or in beds. One of the officers recognized the defendant by description and the officers observed marijuana about the room. Defendant was arrested. The marijuana was seized.

(The version of the facts, thus far stated, is from the evidence received at the preliminary examination, and our decision on search and seizure issues is not based on trial evidence. People v. Johnnie Mae Jones [1968], 12 Mich App 369. At the trial the testimony reflected substantially the same chain of events leading up to the entry into the room by police and, in addition thereto, testimony significant to the second issue, which we summarize as follows.)

Defendant personally registered for the room on September 27, 1968, three days before the arrest, and paid one day’s room rent. A girl paid rent on the day before the arrest. Defendant testified that he rented the room for two other persons, and that he had been sleeping there since about 7 a.m. or 8 a.m. on the day of the arrest. He said that he knew that Paul Silver carried and used marijuana and that he, Valot, previously chased Silver out, hut that Silver was there when he was aroused hy the police. He said that he was unaware of the presence of marijuana in the room until that time.

The room, upon police entry, was in complete disarray. There was a strong odor of marijuana in the room. There were four hand rolled marijuana cigarettes and a brass water pipe of a type used for smoking* marijuana on tables, including one on a table next to the bed occupied hy defendant and another. Later examination disclosed traces of marijuana on the pipe. Two marijuana cigarette butts were in the room, one of them being on the floor beside defendant’s bed. Defendant’s record player was in the room.

We find no merit in the defendant’s constitutional argument. The police had good reason to anticipate finding the defendant, an escapee, in the room. They entered to make a lawful arrest² and seized contraband in plain view as an incident thereto.

The legislature used the words “possession” and “control” in the narcotics statute in their commonly understood sense, and not in a restricted, technical sense. People v. Harper, supra. The trial judge conceded the possibility that someone, unbeknownst to defendant, brought the marijuana into the room, hut nevertheless did not have a reasonable or fair doubt as to defendant’s control thereof. It was a fact question. There was strong circumstantial evidence to support the court’s findings. Defendant’s control of the marijuana in the room was a fact reasonably inferred from tbe evidence. People v. Eaves (1966), 4 Mich App 457.

Upon timely motion of either party, or on its own initiative, the trial court may correct the judgment to disclose that defendant was convicted of control rather than possession of marijuana. GrCR 1963, 528.1. His conviction is affirmed.

R. B. Burns, P. J., concurred.

2 It may be asserted that there was no announcement as required by statute. MOLA § 764.21 (Stat Ann 1954 Rev § 28.880). It does not appear that entry was in violation of defendant’s constitutional rights.