                          IN THE NEBRASKA COURT OF APPEALS

               MEMORANDUM OPINION AND JUDGMENT ON APPEAL
                        (Memorandum Web Opinion)

                                         STATE V. FRANK


  NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
 AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).


                                 STATE OF NEBRASKA, APPELLEE,
                                                 V.

                                   JESSE A. FRANK, APPELLANT.


                             Filed January 27, 2015.    No. A-14-532.


       Appeal from the District Court for Madison County: MARK A. JOHNSON, Judge.
Affirmed.
       Christopher P. Bellmore, Chief Deputy Madison County Public Defender, for appellant.
       Jon Bruning, Attorney General, and Kimberly A. Klein for appellee.


       MOORE, Chief Judge, and INBODY and PIRTLE, Judges.
       Moore, Chief Judge.
        Following a stipulated bench trial, Jesse A. Frank was convicted of driving under the
influence, fourth offense. In this appeal, Frank argues that the district court incorrectly overruled
his motion to suppress. Specifically, Frank contends that he did not operate his vehicle on a
public roadway or a private roadway which allowed public access and, therefore, was not subject
to the DUI laws. We disagree and affirm.
                                   FACTUAL BACKGROUND
        On September 6, 2013, James Heller, a uniformed officer with the City of Norfolk Police
Department, responded to a reported disturbance at 1307 Galeta Avenue in Norfolk. Heller was
notified that an intoxicated person had attempted to drive away from the area. Upon his arrival at
the scene, Heller made contact with Frank while Frank was standing outside of his car that was
located in a driveway between two apartment buildings. Heller observed that Frank showed signs



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of impairment including slurred speech, watery and bloodshot eyes, and an inability to maintain
his balance. Eventually, Frank stated that he had moved his car because he believed that its
previous location might have been blocking someone else in. Heller arrested Frank after Frank
failed a preliminary breath test.
         On October 22, 2013, the State filed an information charging Frank with DUI, fourth
offense, in violation of Neb. Rev. Stat. § 60-6,196 (Reissue 2010). In the information, the State
alleged that Frank’s blood alcohol level exceeded .15.
         Frank filed a motion to suppress and the district court held a hearing on that motion on
December 3, 2013. At the hearing, the parties stipulated that Frank failed the field sobriety tests
and was too impaired to operate a vehicle. They also stipulated that Frank later submitted to a
blood test which revealed that his blood alcohol level was above the legal limit. The only issue at
the hearing was whether Frank had been driving or was in control of his vehicle on public or
private property. The State contended that the property in question was private property open to
public access and, therefore, subject to the DUI laws. Frank contended that it was purely private
property and the DUI laws did not apply.
         At the hearing, Heller testified that he approached the area from North 13th Street,
Highway 81, and drove west up Galeta Avenue. Heller stated that Galeta Avenue is a public
street that is maintained by the City of Norfolk and open to vehicular travel. Referring to maps
and photographs of the area which were received into evidence, Heller described Galeta Avenue
as being lined with houses and condominiums. Apartment buildings are located at both 1305 and
1307 Galeta Avenue and are separated by a common driveway. The driveway is not a through
street, but instead leads to a widened area where three garages for each apartment building are
located along with guest parking.
         Heller stated that he approached Frank in the driveway. Heller observed that Frank’s
vehicle was facing Galeta Avenue and had its driver’s side tire on a gravel area just off the
driveway. The rest of Frank’s vehicle was on the concrete driveway. Heller could not recall
whether Frank’s car was still running. Heller also noticed trash cans had been left in the
driveway area so the residents’ trash could be picked up.
        Officer Mike Strong arrived on scene after Heller. Strong testified that he overheard
Frank tell Heller that he had moved his vehicle into the driveway from the parking area and
Strong personally observed Frank exhibiting signs of impairment. While Heller administered
field sobriety tests to Frank, Strong secured the area.
        Strong also testified that he had been a previous tenant of 1305 Galeta for about 2 years.
Strong stated that the apartment association handled the arrangements for trash service. He also
recalled that the gas and water meters were located on the buildings and the city employees
would have to drive or walk on the driveway to read those meters. Finally, Strong testified that
the driveway did not contain any signs which announced that it was private property or that there
was no parking permitted.
        On December 16, 2013, the district court issued an order overruling Frank’s motion to
suppress. The court noted that Nebraska’s DUI statutes do not apply to the operation or control
of a vehicle on private property that is not open to public access. Thus, the court focused its
analysis on whether the driveway in between 1305 and 1307 Galeta Avenue was private property
with public access. Relying on two Nebraska Supreme Court cases, State v. Prater, 268 Neb.


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655, 686 N.W.2d 896 (2004) and State v. McCave, 282 Neb. 500, 805 N.W.2d 290 (2011), the
district court concluded that the driveway appeared to be open to the public for use, with no
restriction as to access. The court noted that there were no signs to warn members of the public
that no parking was allowed and that service people were allowed to use the driveway.
         Prior to trial, the State filed an amended information in which it alleged that Frank’s
blood alcohol level only exceeded .08. A stipulated bench trial was held on June 6, 2014, during
which Frank renewed his motion to suppress. The court again overruled Frank’s motion. The
district court found Frank guilty of DUI fourth offense. Following an enhancement hearing, the
district court sentenced Frank to a prison term of not less than 1 year nor more than 2 years, with
130 days’ credit given for time previously served. Frank was also fined $1,000, ordered to pay
the costs of prosecution, and had his driver’s license revoked for 15 years. Frank appeals his
conviction and sentence.
                                   ASSIGNMENTS OF ERROR
         Although he assigns two errors, Frank’s argument on appeal focuses on whether the
district court erred when it overruled his motion to suppress.
                                    STANDARD OF REVIEW
         In reviewing a trial court’s ruling on a motion to suppress based on a claimed violation of
the Fourth Amendment, an appellate court applies a two-part standard of review. Regarding
historical facts, we review the trial court’s findings for clear error, but whether those facts trigger
or violate Fourth Amendment protections is a question of law that we review independently of
the trial court’s determination. State v. Matit, 288 Neb. 163, 846 N.W.2d 232 (2014).
                                            ANALYSIS
       Nebraska’s DUI statutes do not apply to operation or control of a vehicle on private
property that is not open to public access. Neb. Rev. Stat. § 60-6,108(1) (Reissue 2010); State v.
McCave, supra. Frank argues that Heller lacked probable cause to arrest him because he operated
his vehicle only on private property that was not open to public access.
       Probable cause to support a warrantless arrest exists only if the officer has knowledge at
the time of the arrest, based on information that is reasonably trustworthy under the
circumstances, that would cause a reasonably cautious person to believe that a suspect has
committed or is committing a crime. State v. Matit, 288 Neb. 163, 846 N.W.2d 232 (2014).
Probable cause is a flexible, commonsense standard that depends on the totality of the
circumstances. Id. Probable cause is not defeated because an officer incorrectly believes that a
crime has been or is being committed. Id. But implicit in the probable cause standard is the
requirement that a law enforcement officer’s mistakes be reasonable. Id. An appellate court
determines whether probable cause existed under an objective standard of reasonableness, given
the known facts and circumstances. Id.
       Both Frank and the State direct this court’s attention to three opinions from the Nebraska
Supreme Court which discuss when a roadway is open to public access. In State v. Prater, 268
Neb. 655, 686 N.W.2d 896 (2004), the Supreme Court considered a case in which the defendant
had been convicted under an Omaha city ordinance which contained a provision similar to



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§ 60-6,108. The defendant had been found slumped over in the driver’s seat of a running vehicle
in an apartment complex parking lot. In that case, the court declared that “the phrase ‘open to
public access’ means that the public has permission or the ability to enter.” State v. Prater, 268
Neb. at 658, 686 N.W.2d at 898. The court found the apartment’s parking lot was open to public
access, even though a sign indicated the lot was private, because the lot was also used by
maintenance workers and guests of residents.
         In State v. McCave, 282 Neb. 500, 805 N.W.2d 290 (2011), the Supreme Court reached
the opposite result. In McCave, the defendant’s vehicle was parked on a residential driveway,
with a portion overhanging the sidewalk. The court found the driveway was not open to public
access as a matter of law because it met the statutory definition a private road or driveway. See
Neb. Rev. Stat. § 60-649 (Reissue 2010). The court also stated that its conclusion was not
affected by the fact that the vehicle was overhanging the sidewalk, because a sidewalk is not for
vehicular use.
         Finally, in State v. Matit, 288 Neb. 163, 846 N.W.2d 232 (2014), the Nebraska Supreme
Court found probable cause for an arrest when the defendant’s vehicle was found parked on a
paved area between the sidewalk and the street in front of an apartment complex. The officer
testified that he understood that this area was part of the City’s right-of-way. The officer also
stated that he had observed the same area on other occasions and witnessed vehicles park in and
later leave the paved area. According to the officer, both residents and nonresidents of the
apartment complex used this area in that way. The Nebraska Supreme Court concluded that the
district court did not err in concluding that the arresting officer had a reasonable belief that the
vehicle was located on property that was open to public access.
         Frank urges this court to follow McCave and conclude that this driveway between the two
apartment buildings is of a similar nature to a driveway leading up to a residential home. He
notes that there is only one difference between the driveway in McCave and this driveway: this
driveway was shared with a limited number of tenants instead of a single homeowner. Frank also
stresses that this driveway should not be considered a parking lot because it does not have an
entrance and exit and does not permit through traffic. Consequently, he contends that the DUI
laws should not apply on this driveway.
         We disagree. The driveway in this case provides access to parking for several tenants of
the two apartment buildings. In addition, there is guest parking available to non-tenants. There is
no signage to notify that this driveway is private or that parking is limited to the residents’
guests. Additionally, there is evidence that service people such as trash collectors and city utility
employees utilize this common driveway. The fact that the driveway does not have a separate
entrance and exit does not change our analysis. Based on these facts, we conclude that the district
court did not err in ruling that this common driveway was open to public access. The district
court properly overruled Frank’s motion to suppress.
                                          CONCLUSION
       Because we find the driveway was open to public access, we affirm the district court’s
order overruling Frank’s motion to suppress.
                                                                                         AFFIRMED.



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