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IN THE NEBRASKA COURT OF APPEALS

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

(Memorandum Web Opinion)

STATE V. PAULY

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.

BRIAN J. PAULY, APPELLANT.

Filed May 10, 2022. No. A-21-713.

Appeal from the District Court for Lancaster County: SUSAN I. STRONG, Judge. Affirmed.

Joy Shiffermiller, of Shiffermiller Law Office, P.C., L.L.O., for appellant.

Douglas J. Peterson, Attorney General, and Nathan A. Liss for appellee.

PIRTLE, Chief Judge, and RIEDMANN and WELCH, Judges.

RIEDMANN, Judge.

INTRODUCTION

Brian J. Pauly appeals his plea based conviction of possession with intent to deliver 

methamphetamine. He assigns that his trial counsel was ineffective in certain respects and that he 

received an excessive sentence. For the reasons explained below, we affirm.

BACKGROUND

On May 22, 2020, a law enforcement officer with the Lancaster County sheriff’s office 

observed a vehicle with Texas license plates traveling eastbound on Interstate 80. The officer 

observed that the vehicle was traveling 69 miles per hour in a 65 mile per hour zone and was 

following a semi at a very close and unsafe distance. He therefore initiated a traffic stop and made 

contact with the driver, who he later identified as Pauly. Pauly provided his Iowa driver’s license 

and the rental agreement for the vehicle and accompanied the officer to his cruiser.
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During the time it took to issue Pauly a warning, the officer became suspicious that Pauly 

was involved in criminal activity. After the traffic stop was complete and the warning had been 

issued, Pauly continued to speak with the officer, but he denied consent to search the vehicle. The 

officer therefore requested a canine unit to come to the scene. The drug detection dog completed 

an exterior sniff of Pauly’s vehicle and alerted and indicated to the odor of narcotics coming from 

the vehicle. A subsequent search of the vehicle revealed 27.8 grams of methamphetamine and three 

glass pipes.

The State filed an information charging Pauly with possession with intent to deliver 

methamphetamine, in a quantity of at least 10 grams but less than 28 grams, which is a Class ID 

felony. Neb. Rev. Stat. § 28-416(10)(c) (Cum. Supp. 2020). Pursuant to a plea agreement with the 

State, Pauly pled no contest to an amended charge of possession with intent to deliver 

methamphetamine, with no quantity specified, which is a Class II felony. § 28-416(2). Pauly was 

sentenced to 6 to 10 years’ imprisonment. He timely appeals.

ASSIGNMENTS OF ERROR

Pauly assigns, summarized and renumbered, that (1) trial counsel was ineffective in 

violation of his Sixth Amendment rights, (2) trial counsel was ineffective in instructing him on his 

plea options, (3) trial counsel was ineffective in advising him to waive his right to a trial by a jury 

of his peers, (4) trial counsel was ineffective in failing to follow through with the motion to 

suppress and advising him to plead no contest, (5) trial counsel was ineffective in advising the 

judge that he was not a good candidate for probation, and (6) he received an excessive sentence.

STANDARD OF REVIEW

Appellate review of a claim of ineffective assistance of counsel is a mixed question of law 

and fact. State v. Chairez, 302 Neb. 731, 924 N.W.2d 725 (2019). When reviewing a claim of 

ineffective assistance of counsel, an appellate court reviews the factual findings of the lower court 

for clear error. Id. With regard to the questions of counsel’s performance or prejudice to the 

defendant as part of the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668, 

104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), an appellate court reviews such legal determinations 

independently of the lower court’s decision. State v. Chairez, supra.

In reviewing claims of ineffective assistance of counsel on direct appeal, an appellate court 

decides only whether the undisputed facts contained within the record are sufficient to conclusively 

determine whether counsel did or did not provide effective assistance and whether the defendant 

was or was not prejudiced by counsel’s alleged deficient performance. Id.

An appellate court will not disturb a sentence imposed within the statutory limits absent an 

abuse of discretion by the trial court. Id.

ANALYSIS

Ineffective Assistance of Counsel.

Pauly assigns five errors related to the effectiveness of his trial counsel. Out of those five 

errors, only two have been properly presented for review. The first error alleges that Pauly’s trial 

counsel was ineffective in violation of his Sixth Amendment rights. Assignments of error on direct 

appeal regarding ineffective assistance of trial counsel must specifically allege deficient 
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performance. State v. Mrza, 302 Neb. 931, 926 N.W.2d 79 (2019). Because Pauly does not allege 

how trial counsel performed deficiently, this assigned error lacks the specificity required on direct 

appeal.

The next two errors allege that Pauly’s trial counsel was ineffective in instructing him on 

his plea options and in advising him to waive his right to a trial by jury. Although these alleged 

errors are more specifically assigned, Pauly does not argue them in his brief. An argument that 

does little more than restate an assignment of error does not support the assignment, and an 

appellate court will not address it. State v. Blake, 310 Neb. 769, 969 N.W.2d 399 (2022). We 

therefore do not address Pauly’s first three assignments of error.

Pauly next assigns that his trial counsel was ineffective in failing to follow through with a 

motion to suppress he filed prior to Pauly entering his plea and advising him to plead no contest. 

He argues that the motion to suppress the evidence found pursuant to the search of his vehicle 

would have been successful, and thus, he was prejudiced by trial counsel’s decision not to pursue 

the motion and advise him to plead to the amended charge. We disagree.

The Fourth Amendment to the U.S. Constitution and article I, § 7, of the Nebraska 

Constitution guarantee against unreasonable searches and seizures. State v. Ferguson, 301 Neb. 

697, 919 N.W.2d 863 (2018). Evidence obtained as the fruit of an illegal search or seizure is 

inadmissible in a state prosecution and must be excluded Id. The ultimate touchstone of the Fourth 

Amendment is reasonableness. Id. Reasonableness is determined by balancing the intrusion on the 

individual’s Fourth Amendment interests against the promotion of legitimate governmental 

interests. Id. A seizure that is lawful at its inception can violate the Fourth Amendment by its 

manner of execution. Id.

It is a bit unclear whether Pauly challenges the legality of the traffic stop. He notes in his 

brief that the traffic stop, the detention, and the search of his vehicle were all contrary to law, but 

his argument focuses on the extension of the duration of the traffic stop. Specifically, Pauly’s 

assigned error is “counsel was ineffective in failing to follow through with the motion to suppress 

and advising [him] to plead ‘No Contest’” and his specific argument is that law enforcement had 

no reasonable suspicion or probable cause to initiate a traffic stop and no reasonable suspicion to 

continue to detain him for the canine sniff. As to that specific assigned error and argument, we 

find that the record is sufficient to reject his claim of ineffective assistance because the probable 

cause affidavit included in our record affirmatively refutes it. The initial stop was proper because, 

according to the probable cause affidavit of the officer who conducted the traffic stop, the officer 

observed Pauly speeding and following another vehicle too closely. A stop of a vehicle is 

objectively reasonable when the officer has probable cause to believe that a traffic violation has 

occurred. State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008). Traffic violations, no matter 

how minor, create probable cause to stop the driver of a vehicle. Id. Thus, here, the officer had 

probable cause to conduct a stop of Pauly’s vehicle based on the observed traffic violations. 

Accordingly, a motion to suppress the initial stop of the vehicle would not have been successful; 

therefore, trial counsel was not ineffective in failing to pursue a motion to suppress related to the 

traffic stop. See State v. Collins, 299 Neb. 160, 907 N.W.2d 721 (2018) (as matter of law, counsel 

cannot be ineffective for failing to raise meritless argument).

Pauly’s primary argument is that the officer improperly extended the duration of the traffic 

stop. In the officer’s probable cause affidavit, he admits that the traffic stop was complete before 
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he summoned the canine unit to conduct a dog sniff of Pauly’s vehicle. The fact that a dog sniff is 

conducted after the time reasonably required to complete the initial mission of the traffic stop is 

not, in and of itself, a Fourth Amendment violation. State v. Ferguson, supra. A Fourth 

Amendment violation arises only when the dog sniff is conducted after the initial mission of a stop 

is completed and the officer lacks probable cause or reasonable suspicion to investigate further. 

Id. Where, on the other hand, the officer has probable cause or reasonable suspicion to continue 

the detention after the initial mission of the stop is completed, the officer may conduct a drug 

detection dog sniff while the suspect is properly detained. Id. Thus, the Nebraska Supreme Court 

has held that seizures that took place in order to facilitate dog sniffs after the completion of traffic 

infraction investigations did not violate the Fourth Amendment when the officers had reasonable 

suspicion of criminal activity, developed during the ordinary inquiries incident to the stops. Id. 

See, also, State v. Rogers, 297 Neb. 265, 899 N.W.2d 626 (2017); State v. Verling, 269 Neb. 610, 

694 N.W.2d 632 (2005).

According to the officer’s probable cause affidavit in the present case, he gathered 

reasonable suspicion that Pauly was involved in criminal activity during the time he was 

completing the mission of the traffic stop. Reasonable suspicion entails some minimal level of 

objective justification for detention, something more than an inchoate and unparticularized hunch, 

but less than the level of suspicion required for probable cause. State v. Rogers, supra. Whether a 

police officer has a reasonable suspicion based on sufficient articulable facts depends on the 

totality of the circumstances and must be determined on a case-by-case basis. Id.

The Supreme Court has previously found that factors similar to those present here created 

reasonable, articulable suspicion to continue to detain a motorist for a canine sniff. See State v. 

Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008). There, the Supreme Court articulated that

[t]hose factors included an officer’s testimony that (1) the motorist had not taken the most 

direct route from the occupants’ stated point of origin to their stated destination and (2) the 

driver or passengers gave implausible or contradictory answers regarding their travel plans. 

And, although of limited usefulness, a court may consider, with other factors, evidence that 

the occupants exhibited nervousness. Finally, a court can consider, as part of the totality of 

the circumstances, the officer’s knowledge of a person’s drug-related criminal history.

Moreover, factors that would independently be consistent with innocent activities 

may nonetheless amount to reasonable suspicion when considered collectively. For 

example, evidence that a motorist is returning to his or her home state in a vehicle rented 

from another state is not inherently indicative of drug trafficking when the officer has no 

reason to believe the motorist’s explanation is untrue. But a court may nonetheless

consider this factor when combined with other indicia that drug activity may be 

occurring -- particularly the occupants’ contradictory answers regarding their travel 

purpose and plans or an occupant’s previous drug-related convictions.

Id. at 462, 755 N.W.2d at 74-75 (internal citations omitted).

Here, the officer detailed that his suspicions were aroused because the rental agreement 

that Pauly showed him indicated that he picked the vehicle up in Arizona and was to return it in 

Arizona, which was not consistent with the travel plans he related to the officer of flying to Las 

Vegas to visit his sister and then driving home to Iowa in a rental car. Further, Pauly could not 
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explain to the officer why he was driving back home, rather than flying home, which the officer 

noted was more expensive and took longer. The officer discovered that Pauly was a convicted 

felon and had a criminal history including a conviction for possession with intent to deliver. On 

the front passenger seat of Pauly’s vehicle, the officer observed a notebook that appeared to be a 

handwritten “owe note ledger,” which the officer opined was common for individuals who move 

large quantities of narcotics. Finally, the officer observed that Pauly was extremely nervous while 

speaking with him and that his nervousness increased throughout the duration of the traffic stop 

and peaked when asked whether he had any illegal items in the vehicle. The officer opined, based 

on his training and experience, that nervousness among the “law abiding general motoring public”

declines throughout a traffic stop where a warning is being issued.

Pauly fails to assign or argue any additional facts which conflict with the facts set forth in 

the probable cause affidavit contained within the record. On this record we conclude that the officer 

had reasonable suspicion that Pauly may be involved in illegal drug activity in order to justify a 

continued detention of Pauly and a dog sniff of the vehicle. And the officer’s reasonable suspicion 

combined with the dog’s indication supported the search of the vehicle. See State v. Draganescu, 

supra (generally, factors supporting officer’s reasonable suspicion of illegal drug activity when 

coupled with well-trained dog’s positive indication of drugs in vehicle will give officer probable 

cause to search vehicle). Accordingly, the continued detention of Pauly and the search of his 

vehicle did not violate the Fourth Amendment. Therefore, his motion to suppress would have been 

unsuccessful, and his trial counsel was not ineffective in failing to pursue it.

Sentencing.

Pauly assigns two errors related to sentencing. He first claims that his trial counsel was 

ineffective in advising the court at the sentencing hearing that he was not a good candidate for 

probation. Because we disagree with Pauly’s interpretation of his trial counsel’s comments, we 

find that trial counsel was not ineffective in this regard.

Pauly is correct when he points out that trial counsel informed the court at sentencing that 

“based on [his] history . . . and the [presentence investigation] score, that it would look on the 

outset that he’s not a good candidate for probation.” But counsel continued to state, “[B]ut, Judge, 

I would draw your attention to the letters that were submitted, and they paint a much different 

picture and I think they provide some context.” Pauly also correctly notes that his counsel admitted 

that putting him on probation would be a risk, but we observe that trial counsel argued that “he’s 

more than worth the risk.”

It is clear from the context of counsel’s comments, as well as the totality of his argument 

at sentencing, that counsel recognized that Pauly may not appear to be an appropriate candidate 

for probation, but he asked the court to take a risk and impose probation anyway. Trial counsel’s 

argument at sentencing culminated with, “I believe he’s a good candidate for probation. He’s worth 

taking the risk on. We would ask for a sentence of probation here today.”

We also note that the court reviewed the presentence investigation report, which included 

the information that trial counsel highlighted. Thus, counsel was not telling the court anything it 

did not already know, and Pauly cannot show that he was prejudiced by counsel’s comments. 

Based on the foregoing, we do not find that counsel’s comments at sentencing rise to the level of 

ineffective assistance of counsel. We therefore reject this claim.
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Pauly also assigns that the district court abused its discretion in imposing an excessive 

sentence. We find no abuse of discretion.

Possession of methamphetamine with no amount specified is a Class II felony. § 28-416(2). 

Class II felonies are punishable by 1 to 50 years’ imprisonment. Neb. Rev. Stat. § 28-105 (Cum. 

Supp. 2020). Therefore, Pauly’s sentence is within the statutory limits, and we review it for an 

abuse of discretion. An abuse of discretion occurs when a trial court’s decision is based upon 

reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, 

reason, and evidence. State v. Chairez, 302 Neb. 731, 924 N.W.2d 725 (2019).

When imposing a sentence, a sentencing judge should consider the defendant’s (1) age, (2) 

mentality, (3) education and experience, (4) social and cultural background, (5) past criminal 

record or record of law-abiding conduct, and (6) motivation for the offense, as well as (7) the 

nature of the offense and (8) the violence involved in the commission of the crime. Id. The 

appropriateness of a sentence is necessarily a subjective judgment and includes the sentencing 

judge’s observation of the defendant’s demeanor and attitude and all the facts and circumstances 

surrounding the defendant’s life. Id.

The court made clear at sentencing that it considered the information in the presentence 

investigation report and the statutorily required factors. It noted that Pauly had twice been found 

with “dealer quantities” of various illegal substances, recognizing that part of the court’s job was 

to protect the public and to prevent those types of drugs from being sold in Nebraska. The court 

observed that Pauly was still using drugs as of three months prior to sentencing, which led the 

court to believe that he was either not doing well in drug treatment or had not been in treatment at 

that time. Ultimately the court found that a sentence of prison was appropriate and explained its 

rationale for that decision. We cannot say that the sentence imposed was untenable or clearly 

against justice, conscience, reason, or evidence. Accordingly, Pauly’s sentence was not an abuse 

of discretion and is affirmed.

CONCLUSION

We find that several of Pauly’s assigned errors alleging ineffective assistance of trial 

counsel were not properly presented for our review, and we reject his remaining claims. We further 

find that the district court did not abuse its discretion in the sentence imposed. Therefore, we affirm 

the conviction and sentence.

AFFIRMED.