State v. Erickson, 84-296

• Court: United States State Supreme Court of Iowa
• Writing for the Court: McCORMICK
• Citation: 362 N.W.2d 528
• Parties: STATE of Iowa, Appellee, v. Timothy Alan ERICKSON, Appellant.
• Docket Number: No. 84-296,84-296
• Decision Date: 13 February 1985

Page 528

362 N.W.2d 528 STATE of Iowa, Appellee,
v.
Timothy Alan ERICKSON, Appellant. No. 84-296. Supreme Court of Iowa. Feb. 13, 1985.

Page 530

Charles H. Harrington, Appellate Defender, and John P. Messina, Asst. Appellate Defender, for appellant.

Thomas J. Miller, Atty. Gen., Steven K. Hansen, Asst. Atty. Gen., and Dorothy M. Maher, Asst. County Atty., for appellee.

Considered by UHLENHOPP, P.J., and HARRIS, McCORMICK, CARTER, and WOLLE, JJ.

McCORMICK, Justice.

In this appeal we must decide whether a truck driver who lives in the cab of his semi-truck is free to keep a revolver in the truck. Defendant Timothy Alan Erickson was convicted by jury and sentenced for carrying a revolver in his semi-truck in violation of Iowa Code section 724.4 (1983). He contends the trial court erred in overruling his motion to suppress the weapon, in refusing to instruct on or acquit him based on two defenses to the charge, and in violating several legal restrictions in sentencing him. We find no merit in his contentions and therefore affirm the trial court.

During the late evening of August 7, 1983, a Johnson County deputy sheriff was dispatched to the scene of reported reckless driving by two semi-trucks on Interstate 80. He found two trucks parked, one behind the other, on the shoulder off the exit ramp near Oxford. Defendant was asleep in the driver's seat of one of the trucks. The officer awakened him and asked him to get out of the truck. When defendant did so, the officer noted that he was unsteady on his feet, his speech was slurred, and he smelled of alcoholic beverages. The officer believed defendant was intoxicated, had observed a cooler on the floor of the truck cab, and wished to search the truck for beverages. He asked defendant's consent to search the cab, and defendant gave him permission to do so.

Another deputy sheriff and a state trooper were called to the scene. The officers became occupied with investigating the driver of the other truck and did not immediately search defendant's truck. Defendant then said he did not want his truck searched by the deputy to whom he had given permission. When asked by the other deputy if that meant he withdrew his consent for the search, he said that officer could conduct the search. As that officer opened the cab door, defendant said, "You might as well know there is a gun in there." The officer found a revolver in the sleeping area of the cab, and that incident is the basis of the present charge.

I. The search issue. Defendant contends the court erred in overruling his motion to suppress the revolver as the product of an unlawful search. Among other grounds, the State sought to uphold the search on the ground of consent. Defendant alleges that he was too intoxicated for his consent to be voluntary.

It is well established that a search "without warrant and without probable cause, but with proper consent voluntarily given, is valid under the fourth amendment." State v. Bakker, 262 N.W.2d 538, 546 (Iowa 1978). The burden is on the State to establish the voluntariness of the consent by a preponderance of the evidence. State v. Folkens, 281 N.W.2d 1, 3 (Iowa 1979).

At one time this court said that intoxication was an affirmative defense on the voluntariness issue upon which the defendant bore the burden of proof. See State v. Baych, 169 N.W.2d 578, 583 (Iowa 1969). Subsequently, the court held that the defendant bears the burden of production of evidence but not the burden of persuasion on an intoxication defense. See State v. Templeton, 258 N.W.2d 380, 383 (Iowa 1977). Thus, to the extent that the Baych case imposed the burden of persuasion on the defendant, it is overruled. Our recent cases have recognized that the burden of persuasion on the consent issue remains with the State. See State v. Hatter, 342 N.W.2d 851, 854 (Iowa 1983); State v. Hall, 297 N.W.2d 80, 89 (Iowa 1980), cert. denied, 450 U.S. 927, 101 S.Ct. 1384, 67 L.Ed.2d 359 (1981); State v. Ege, 274 N.W.2d 350, 353 (Iowa 1979).

Page 531

We find that the State met its burden to prove voluntary consent in the present case. Although the evidence establishes defendant was intoxicated, his faculties were not so impaired as to disable him from consenting to the search. The record sufficiently shows his consent was the product of a rational intellect and free will. Therefore the trial court did not err in overruling defendant's motion to suppress.

II. The defenses. By requested instructions and a motion for acquittal defendant asserted two defenses to the weapons charge. Both were based on exceptions provided in section 724.4. In relevant part, the statute provides:

A person who goes armed with a dangerous weapon concealed on or about his or her person, ... or who knowingly carries or transports in a vehicle a pistol or revolver, commits an aggravated misdemeanor, provided that this section shall not apply to any of the following:

1. A person who goes armed with a dangerous weapon in his or her dwelling or place of business, or on land owned or possessed by the person.

................................................................................

* * *

6. Any person who for any lawful purpose carries or transports an unloaded pistol or revolver in any vehicle inside a closed and fastened container or securely wrapped package which is too large to be concealed on the person or inside a cargo or luggage compartment where the pistol or revolver will not be readily accessible to any person riding in the vehicle or common carrier.

Defendant asserted that his truck was his "dwelling" and "place of business" within the meaning of section 724.4(1). Because the revolver was lying on the bunk in the truck cab, he did not rely on subsection six. The statutory exceptions are affirmative defenses. See State v. Bowdry, 337 N.W.2d 216, 218 (Iowa 1983).

A. The dwelling issue. Defendant introduced evidence that he spent 95 percent of his time in his truck, transporting goods between Chicago and Minnesota and on the west coast. He owned the truck and slept in it most of the time. He had moved out of his parents' Minnesota home in 1981, although he still received mail there. When not driving the truck, he stayed with a girl friend in Minneapolis.

A curtain divided the bunk from the driving compartment of the truck cab. Defendant kept his clothes, a cooler, toiletries, stereo, TV, tools, and bedding in the truck. He carried a lawn chair strapped to the back of the cab.

In contending the truck was his dwelling, defendant relied on the definition in section 702.10:

A "dwelling" is any...