- 219 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. DRAKE

Cite as 311 Neb. 219

State of Nebraska, appellee, v. 

John A. Drake, appellant.

___ N.W.2d ___

Filed March 25, 2022. No. S-21-179.

1. Constitutional Law: Search and Seizure: Motions to Suppress: 

Appeal and Error. 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, an appellate court reviews the trial court’s findings for clear 

error, but whether those facts trigger or violate Fourth Amendment 

protections is a question of law that an appellate court reviews independently of the trial court’s determination.

2. Statutes: Appeal and Error. Statutory interpretation is a question of 

law, which an appellate court resolves independently of the trial court.

3. Effectiveness of Counsel: Constitutional Law: Statutes: Records: 

Appeal and Error. Whether a claim of ineffective assistance of trial 

counsel can be determined on direct appeal presents a question of law, 

which turns upon the sufficiency of the record to address the claim 

without an evidentiary hearing or whether the claim rests solely on the 

interpretation of a statute or constitutional requirement.

4. Effectiveness of Counsel: Appeal and Error. 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.

5. Constitutional Law: Police Officers and Sheriffs: Search and 

Seizure. The first tier of police-citizen encounters involves no restraint 

of the liberty of the citizen involved, but, rather, the voluntary cooperation of the citizen is elicited through noncoercive questioning. This type 

of contact does not rise to the level of a seizure and therefore is outside 

the realm of Fourth Amendment protection.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

05/06/2022 09:08 AM CDT
- 220 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. DRAKE

Cite as 311 Neb. 219

6. Constitutional Law: Criminal Law: Police Officers and Sheriffs: 

Investigative Stops: Search and Seizure: Appeal and Error. The second tier of police-citizen encounters, the investigatory stop, as defined 

by the U.S. Supreme Court in Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 

20 L. Ed. 2d 889 (1968), is limited to brief, nonintrusive detention during a frisk for weapons or preliminary questioning. This type of encounter is considered a seizure sufficient to invoke Fourth Amendment safeguards, but because of its less intrusive character requires only that the 

stopping officer have specific and articulable facts sufficient to give rise 

to reasonable suspicion that a person has committed or is committing 

a crime.

7. Constitutional Law: Criminal Law: Police Officers and Sheriffs: 

Arrests: Search and Seizure: Probable Cause. The third tier of 

police-citizen encounters, arrests, is characterized by highly intrusive 

or lengthy search or detention. The Fourth Amendment requires that an 

arrest be justified by probable cause to believe that a person has committed or is committing a crime.

8. Sentences: Prior Convictions: Habitual Criminals: Proof. In a habitual criminal proceeding, the State’s evidence must establish with requisite trustworthiness, based upon a preponderance of the evidence, that 

(1) the defendant has been twice convicted of a crime, for which he or 

she was sentenced and committed to prison for not less than 1 year; (2) 

the trial court rendered a judgment of conviction for each crime; and (3) 

at the time of the prior conviction and sentencing, the defendant was 

represented by counsel or had knowingly and voluntarily waived representation for those proceedings.

9. Statutes. It is not within the province of the courts to read a meaning 

into a statute that is not there or to read anything direct and plain out of 

a statute.

10. Effectiveness of Counsel: Appeal and Error. When a defendant’s trial 

counsel is different from his or her counsel on direct appeal, the defendant must raise on direct appeal any issue of trial counsel’s ineffective 

performance which is known to the defendant or is apparent from the 

record; otherwise, the ineffective assistance of trial counsel issue will be 

procedurally barred.

11. Effectiveness of Counsel: Records: Appeal and Error. Once raised, an 

appellate court will determine whether the record on appeal is sufficient 

to review the merits of the ineffective performance claims. The record 

is sufficient if it establishes either that trial counsel’s performance was 

not deficient, that the appellant will not be able to establish prejudice 

as a matter of law, or that trial counsel’s actions could not be justified as a part of any plausible trial strategy. Conversely, an ineffective 
- 221 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. DRAKE

Cite as 311 Neb. 219

assistance of counsel claim will not be addressed on direct appeal if it 

requires an evidentiary hearing.

12. Postconviction: Effectiveness of Counsel: Appeal and Error. The 

necessary specificity of allegations of ineffective assistance of trial 

counsel on direct appeal for purposes of avoiding waiver requires, at a 

minimum, allegations of deficient performance described with enough 

particularity for an appellate court to make a determination of whether 

the claim can be decided upon the trial record and also for a district 

court later reviewing a potential petition for postconviction relief to 

be able to recognize whether the claim was brought before the appellate court.

13. Effectiveness of Counsel: Appeal and Error. Assignments of error 

on direct appeal regarding ineffective assistance of trial counsel must 

specifically allege deficient performance, and an appellate court will not 

scour the remainder of the brief in search of such specificity.

Appeal from the District Court for York County: James C. 

Stecker, Judge. Affirmed.

Jerry D. Clinch and Steven B. Fillman, of Fillman Law 

Offices, L.L.C., for appellant.

Douglas J. Peterson, Attorney General, and Matthew Lewis 

for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

Papik, and Freudenberg, JJ.

Heavican, C.J.

I. INTRODUCTION

John A. Drake was arrested in December 2018 in York 

County, Nebraska, after methamphetamine and drug paraphernalia were found in his vehicle and on his person. Drake’s 

motion to suppress evidence seized during his arrest was 

denied. After a stipulated bench trial, the district court found 

Drake guilty of possession of a controlled substance and found 

him to be a habitual criminal under Neb. Rev. Stat. § 29-2221 

(Reissue 2016). Due to his enhanced sentence, the court sentenced Drake to a term of 10 to 12 years’ incarceration. Drake 

appealed, challenging the denial of his motion to suppress, 
- 222 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. DRAKE

Cite as 311 Neb. 219

challenging the enhancement of his sentence, and alleging ineffective assistance of trial counsel. We affirm.

II. FACTUAL BACKGROUND

As noted above, Drake was arrested by a York County sheriff’s deputy, Korey Goplin, on December 28, 2018, after methamphetamine and drug paraphernalia were found in his vehicle 

and on his person. In March 2019, the York County Attorney’s 

office charged Drake with possession of a controlled substance with intent to distribute methamphetamine, possession 

of a controlled substance, and being a habitual criminal under 

§ 29-2221. The York County public defender was thereafter 

appointed as counsel for Drake. Drake waived his right to 

speedy trial and the matter was set for a jury trial to commence 

on August 20, 2019, in the district court for York County.

On August 14, 2019, Drake moved to suppress evidence 

obtained as a result of the traffic stop. Drake’s counsel attached 

an affidavit to the motion, stating that he was aware the motion 

to suppress was not filed more than 10 days prior to trial as 

required by law, unless permitted by the court for good cause 

shown. Counsel requested the court find good cause, stating 

that he had previously given verbal notice to the court and to 

the State on August 6 and that the failure to timely file the 

motion to suppress was exclusively counsel’s responsibility due 

to an “inability to adjust [to] an unusually heavy workload.” 

The district court granted such leave and scheduled a hearing 

on the motion to suppress to be held on August 22, with a jury 

trial to immediately follow.

At the suppression hearing, the State called Goplin, who 

testified that on December 28, 2018, he came upon a green 

Buick traveling northbound on Road E, south of Interstate 80 

between York and Henderson, Nebraska, at very slow speeds. 

Goplin followed the Buick for a short time and “ran its license 

plate” to check whether the it was stolen. During this time, 

the Buick turned southbound down a dead-end road which led 

to a residence. Goplin testified that there had recently been 
- 223 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. DRAKE

Cite as 311 Neb. 219

multiple thefts in the county, so he became suspicious of the 

Buick when it stopped in a residential driveway late at night, 

yet no one exited the vehicle.

Goplin returned to the intersection of Road E and Road 8, 

keeping the Buick in his sight. The Buick left the residence 

and returned to the intersection of Road E and Road 8, turning 

southbound on Road E. Goplin again followed the Buick for a 

short period of time, when suddenly the Buick stopped in the 

middle of Road E. Goplin parked his cruiser behind the Buick 

to make contact with the driver, Drake.

Upon contact, Goplin asked Drake “what he was doing back 

at the residence because [Goplin] didn’t see anybody get out 

of the vehicle.” Drake informed Goplin that he “just dropped 

off a friend named Candace Powers.” Goplin was familiar with 

Candace Powers and knew she did not live at that residence. 

During this conversation, Drake stated, seemingly unprompted, 

that “it’s been a long time since [I’ve] been in trouble with 

law enforcement.” Goplin returned to his cruiser to check the 

status of Drake’s driver’s license, which indicated that Drake 

had a valid driver’s license and no arrest warrants, but had a 

history of drug possession. Goplin then activated his cruiser’s 

emergency lights before returning to the Buick, stating that he 

did so due to road conditions and the position of the vehicles 

in the middle of the roadway.

Upon returning to Drake’s vehicle, Goplin reiterated to 

Drake that he was not stopped and that Drake had stopped on 

his own. Goplin continued to question Drake about his activities that night, asking individual questions regarding whether 

Drake had any weapons, drugs, or weapons of mass destruction in the vehicle. According to Goplin, when Drake was 

specifically asked about drugs, Drake broke eye contact and 

looked down, which indicated to Goplin that Drake may be 

engaged in criminal drug activity.

During this time, Drake stated he was lost and trying to 

get home. Goplin thought this was suspicious because Drake 

had also said he dropped a friend, Powers, off at her home, 

whom Goplin knew did not live at the home Drake had just 
- 224 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. DRAKE

Cite as 311 Neb. 219

visited. Drake also said that he had previously driven from his 

home in Aurora, Nebraska, to Powers’ actual house multiple 

times, and he even described the directions from Aurora to 

Powers’ house. Goplin thought “it was odd that Drake would 

be lost if he knew the route.”

Goplin asked Drake to exit the vehicle and come to his 

cruiser due to the cold temperature outside. Drake then grabbed 

his jacket in a way which appeared to Goplin “as if he was trying not to disturb the contents within it, instead of just jumping 

out and picking it up.” Goplin asked if he could search Drake’s 

person, which Drake refused.

Drake got into the front passenger seat of Goplin’s cruiser, 

at which time Goplin asked Drake about whether drugs were 

in the Buick. Drake would not answer directly, and instead, 

he stated that the vehicle belonged to his boss. Drake refused 

consent to search the vehicle upon that basis. Goplin informed 

Drake that because he was in control of the vehicle, he could 

give consent to search the vehicle, but Drake refused. Goplin 

asked if Drake would be willing to wait for a “drug dog” to do 

a “sniff of the vehicle,” and Drake agreed.

While waiting for the drug dog to arrive, Goplin did not 

affirmatively tell Drake that he was free to go, but also did 

not inform Drake that he could not leave. Goplin recalled that 

Drake did not ask whether he was being detained and did not 

revoke consent to the search of the vehicle.

Thirty-nine minutes later, another York County sheriff’s 

deputy, Robert Penner, arrived with the drug dog, which alerted 

that drugs were located in the vehicle. Goplin searched the vehicle and found multiple small baggies consistent with the distribution of controlled substances. Goplin then searched Drake’s 

person. Inside Drake’s jacket, Goplin found a sunglasses case 

with 5 grams of suspected methamphetamine, a pipe, and a 

straw. Goplin arrested Drake. Testing later confirmed that the 

substance was methamphetamine.

On cross-examination, Goplin indicated that detained motorists typically wait an average of 20 minutes for “arrival of 
- 225 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. DRAKE

Cite as 311 Neb. 219

[a] drug dog for a sniff search.” Goplin also stated that although 

the road conditions were hazardous and there was 1 to 2 inches 

of snow on the ground, the road was not completely snow covered so it was suspicious that Drake was traveling only about 

25 miles per hour. Goplin testified that during the 39 minutes 

he and Drake waited for the drug dog to arrive, they had short 

conversations about Drake’s job, why he was driving his boss’ 

vehicle, and what had happened to his vehicle. Penner testified 

after Goplin, providing a similar account of events.

Drake then took the stand to testify. Drake stated that he was 

lost when he turned down the driveway and that there had been 

no signs indicating that it was a driveway or a dead end. He 

had seen Goplin following him before turning down the deadend road, and upon returning to the main road, he saw that 

Goplin was following him for a second time, so Drake decided 

to stop “to let him know what was going on.” After Drake gave 

his driver’s license to Goplin, Goplin turned on his cruiser’s 

emergency lights. Drake stated that Goplin returned and told 

Drake “everything was fine there and he just wanted to ask 

[Drake] some questions.” However, Drake testified that after 

Goplin had turned his cruiser’s emergency lights on and asked 

Drake to “join him in his vehicle,” Drake believed he was being 

detained. Drake stated that he did ask if he was free to go, to 

which Goplin “would not reply but changed subjects.”

The court overruled Drake’s motion to suppress after making specific findings on the record as follows:

That it was a voluntary stop by [Drake]; that [Drake] then 

violated the law by stopping his vehicle in the middle 

of the road, impeding traffic, a violation of Nebraska 

law. The community caretaker provision with [Drake’s] 

stopping late at night in cold weather is also applicable. 

[Drake’s] behavior by driving slow late at night, driving into a dead end and not being a local vehicle was 

suspicious. The contact initially was voluntary. [Drake] 

when meeting with [the] officer gave suspicious answers. 

The [o]fficer knew the residence of Candace Powers, 
- 226 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. DRAKE

Cite as 311 Neb. 219

knew that it was not Candace Powers’ residence and that 

he did know Candace Powers and that [Drake] had said 

that he had been to Candace Powers’ many times but yet 

that he was lost. Those [are] suspicious answers. [Drake] 

indicated that [the Buick] was not his vehicle. There was 

no evidence of permission for him to drive the vehicle, 

therefore he had no standing to object to the search. 

[Drake] agreed to wait for the drug dog. He was never 

arrested, not cuffed and never detained. He did consent to 

wait for the drug dog. That consent was never withdrawn. 

The dog was deployed, did alert and indicate, and at that 

point reasonable suspicion existed. . . . During the search 

baggies were found. [Drake] had a drug history. [Drake] 

acted suspiciously by the way he picked up and held his 

jacket. The officer had reasonable suspicion that a crime 

was afoot. The officer had probable cause to search.

Following a stipulated bench trial, the court found Drake 

not guilty of count I, possession of a controlled substance with 

intent to distribute, and guilty of count II, possession of a controlled substance. An enhancement hearing was subsequently 

held, after which the court found Drake to be a habitual criminal pursuant to § 29-2221. Drake was sentenced to a term of 10 

to 12 years’ imprisonment.

The record indicates that after sentencing, Drake’s counsel 

failed to perfect an appeal. Drake then submitted a petition 

for postconviction relief, and the district court found that this 

failure had denied Drake an opportunity to appeal the court’s 

October 2019 ruling. The district court reinstated Drake’s right 

to appeal on February 8, 2021, and Drake thereafter perfected 

an appeal. We subsequently moved this case to our docket.

On appeal, Drake challenges the district court’s denial of his 

motion to suppress on the basis that the stop was not consensual and that Drake believed he was being detained.

Drake also challenges the court’s enhancement of his sentence, arguing that the State must have presented evidence 
- 227 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. DRAKE

Cite as 311 Neb. 219

that Drake “was sent to prison for a fixed period of time of 

not less than one year and that at least one year was served in 

prison,” in order to satisfy § 29-2221. 1 According to § 29-2221, 

a defendant must have “been twice convicted of a crime, sentenced, and committed to prison . . . for terms of not less than 

one year.”

In addition, Drake’s appellate counsel is different than his 

trial counsel, and Drake alleges several instances of ineffective 

assistance of trial counsel.

III. ASSIGNMENTS OF ERROR

On appeal, Drake assigns that the district court erred in (1) 

denying Drake’s motion to suppress; (2) finding Drake to be a 

habitual criminal pursuant to § 29-2221; and (3) finding that 

Drake received ineffective assistance of trial counsel because 

trial counsel (a) failed to file and schedule a timely motion to 

suppress, (b) failed to request certain discovery prior to trial, 

(c) failed to subpoena witnesses necessary to provide foundation for exhibits, (d) agreed to a stipulated bench trial with 

stipulated facts, and (e) generally lacked the training and experience for purposes of acting as public defender.

IV. STANDARD OF REVIEW

[1] 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. 2

Regarding historical facts, an appellate court reviews the trial 

court’s findings for clear error, but whether those facts trigger or violate Fourth Amendment protections is a question of 

law that an appellate court reviews independently of the trial 

court’s determination. 3

1 Brief for appellant at 17.

2 State v. Lowman, 308 Neb. 482, 954 N.W.2d 905 (2021); State v. Briggs, 

308 Neb. 84, 953 N.W.2d 41 (2021).

3 Id.
- 228 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. DRAKE

Cite as 311 Neb. 219

[2] Statutory interpretation is a question of law, which an 

appellate court resolves independently of the trial court. 4

[3,4] Whether a claim of ineffective assistance of trial counsel can be determined on direct appeal presents a question of 

law, which turns upon the sufficiency of the record to address 

the claim without an evidentiary hearing or whether the claim 

rests solely on the interpretation of a statute or constitutional 

requirement. 5 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. 6

V. ANALYSIS

1. Motion to Suppress

On appeal, Drake argues that the trial court erred in denying his motion to suppress. Drake asserts that the stop which 

occurred on December 28, 2018, was not voluntary and that 

thus, the evidence obtained as a result of that stop was obtained 

in violation of the Fourth Amendment. Drake claims that 

Goplin followed him long enough to “prompt[]” 7 Drake to stop 

his vehicle; that Goplin questioned Drake “in earnest,” 8 which 

intimidated Drake; that Goplin then turned on his cruiser’s 

emergency lights in a manner that led Drake to believe that 

he was being detained; and finally, that as they waited for the 

4 State v. Lierman, 305 Neb. 289, 940 N.W.2d 529 (2020); Griffith v. 

Nebraska Dept. of Corr. Servs., 304 Neb. 287, 934 N.W.2d 169 (2019).

5 State v. Lowman, supra note 2; State v. Theisen, 306 Neb. 591, 946 

N.W.2d 677 (2020).

6 State v. Lowman, supra note 2; State v. Lang, 305 Neb. 726, 942 N.W.2d 

388 (2020), cert. denied ___ U.S. ___, 141 S. Ct. 415, 208 L. Ed. 2d 119.

7 Brief for appellant at 12.

8 Id. at 13.
- 229 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. DRAKE

Cite as 311 Neb. 219

drug dog to arrive, Goplin refused to tell Drake whether he was 

free to go.

[5-7] Under Nebraska law and the law regarding seizures in 

the context of the Fourth Amendment, there are three tiers of 

police-citizen encounters. 9 As we have previously stated:

The first tier of police-citizen encounters involves no 

restraint of the liberty of the citizen involved, but, rather, 

the voluntary cooperation of the citizen is elicited through 

noncoercive questioning. This type of contact does not 

rise to the level of a seizure and therefore is outside the 

realm of Fourth Amendment protection.

The second tier, the investigatory stop, as defined by 

the U.S. Supreme Court in Terry v. Ohio, is limited to 

brief, nonintrusive detention during a frisk for weapons 

or preliminary questioning. This type of encounter is considered a seizure sufficient to invoke Fourth Amendment 

safeguards, but because of its less intrusive character 

requires only that the stopping officer have specific and 

articulable facts sufficient to give rise to reasonable suspicion that a person has committed or is committing 

a crime.

The third type of police-citizen encounters, arrests, is 

characterized by highly intrusive or lengthy search or 

detention. The Fourth Amendment requires that an arrest 

be justified by probable cause to believe that a person has 

committed or is committing a crime. 10

(a) First-Tier Police-Citizen Encounter

(i) Voluntary Stop

According to the record, Goplin was on patrol in the area 

when he noticed Drake’s vehicle driving at slow speeds, around 

25 miles per hour, which was slower than Goplin would expect 

given the weather conditions. Goplin followed the vehicle 

9 See State v. Lowman, supra note 2.

10 Id. at 491-92, 954 N.W.2d at 916.
- 230 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. DRAKE

Cite as 311 Neb. 219

to check the license plate, which is standard practice. When the 

vehicle went down a dead-end road, Goplin kept the vehicle 

in his sight but did not follow. Once the vehicle returned to 

the main intersection, Goplin again followed, but did not activate his cruiser’s emergency lights or indicate that the vehicle 

needed to stop.

While Drake says that he stopped only because Goplin’s 

actions “prompt[ed]” 11 him to do so, Drake still chose to stop 

in the middle of the road instead of pulling over or onto the 

shoulder. At this point, Goplin made contact with Drake, but 

informed him that he had not been stopped and that Drake had 

stopped on his own. Goplin questioned Drake about what he 

was doing that night but did not detain Drake, and Goplin even 

told Drake that “everything was fine” and that he just had a 

few questions.

When Goplin later asked Drake if he would consent to a 

search of his person or of the vehicle, Drake refused both. 

Drake refused consent to the search of the vehicle because he 

claimed it was not his own, and he continued to refuse consent 

even after Goplin explained that he could give consent even 

though it was not his vehicle, if that is what Drake wanted to 

do. Drake’s continued refusal to consent to a search supports 

the district court’s determination that the contact was voluntary, 

and we find that determination to not be clearly erroneous.

(ii) Waiting for Drug Dog

According to the district court, Drake later agreed to wait 

for a drug dog, consented to the drug dog’s performing a 

search of the vehicle, and never withdrew such consent. The 

district court also found that Drake was never detained during 

this time.

Goplin testified that Drake was seated in Goplin’s cruiser in 

the front seat with an unlocked door and that he asked Drake 

to join him in his cruiser because the cold temperatures did not 

allow Goplin and Drake to wait outside. Drake also testified 

11 Brief for appellant at 12.
- 231 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. DRAKE

Cite as 311 Neb. 219

that Goplin, after checking Drake’s driver’s license and returning to Drake’s vehicle, “said that everything was fine” and “he 

just wanted to ask [Drake] some questions.” Drake stated that 

he “had to turn almost at a 45 to talk to [Goplin]” and that 

when Drake did so, the front lights of the cruiser reflected off 

the Buick’s rearview mirror into his eyes. This is when Goplin 

asked Drake if he “would join him in his vehicle.”

Drake asserts that while he was in Goplin’s cruiser waiting 

for the drug dog to arrive, he asked Goplin if he was free to 

go, and that Goplin “would not reply” or would change subjects. By contrast, counsel for Drake asked Goplin definitively, 

“[d]id [Drake] ever ask you whether he was free to leave?” to 

which Goplin responded, “No.” Goplin also testified that he 

had informed Drake multiple times he had not been stopped 

and that he “reiterated [he] had not conducted a traffic stop” on 

Drake and “[i]f [Drake] was being detained, I would have told 

him he was detained.”

Based on this evidence and testimony, the district court 

determined that Drake was never detained, implicitly finding 

Goplin to be a more credible witness than Drake. Regarding 

historical facts, an appellate court reviews the trial court’s 

findings for clear error, but does not resolve conflicts in the 

evidence, pass on the credibility of witnesses, or reweigh the 

evidence. 12 Because these findings are supported by the record 

and testimony, they are not clearly erroneous.

(iii) 39-Minute Wait

Drake further argues that his waiting for at least 39 minutes 

for the drug dog to arrive is evidence that he was unreasonably detained. The evidence and testimony within the record 

show that Drake voluntarily consented to wait; thus, Drake’s 

waiting 39 minutes did not transform an otherwise voluntary 

interaction into a detention. But we note that even if Drake had 

been detained during the 39-minute wait for the drug dog to 

arrive, such period of time would not be unreasonable.

12 See State v. Lowman, supra note 2.
- 232 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. DRAKE

Cite as 311 Neb. 219

We have previously held that an investigatory stop lasting 

34 to 45 minutes was not unreasonable for purposes of the 

Fourth Amendment. 13 And investigatory stops lasting 50 minutes or longer have been upheld in several federal courts. For 

example, in U.S. v. Hardy,

 14 the court determined that a wait of 

50 minutes for the arrival of a drug dog was not unreasonable 

for Fourth Amendment purposes. In U.S. v. White,

 15 the court 

determined that a 1-hour-20-minute wait for the arrival of a 

drug dog was not unreasonable for Fourth Amendment purposes, and in U.S. v. Bloomfield,

 16 the court held that a 1-hour 

wait for arrival of a drug dog was not unreasonable for Fourth 

Amendment purposes.

The testimony of both Goplin and Penner indicates that 

Penner was awoken in the middle of the night and had to 

travel to where Goplin and Drake were located for the drug 

dog to perform the search, each a reasonable explanation for 

this period of delay. Thus, even if Drake had been detained, a 

39-minute wait would not be unreasonable for purposes of the 

Fourth Amendment.

Because the vehicle stop was voluntary and Drake was not 

detained, the initial interactions between Goplin and Drake 

placed no restraint on Drake’s liberty. Drake’s interaction 

with Goplin was elicited through noncoercive questioning. 

Hence, these early interactions are best defined as a first-tier 

police citizen encounter outside the protections of the Fourth 

Amendment.

(b) Second-Tier Police-Citizen Encounter

When the drug dog arrived to perform a “free air sniff” of 

the vehicle, it indicated and alerted to the presence of drugs. 

Drake was detained, and at this time, the interaction evolved 

13 See State v. Soukharith, 253 Neb. 310, 570 N.W.2d 344 (1997).

14 See U.S. v. Hardy, 855 F.2d 753 (11th Cir. 1988).

15 See U.S. v. White, 42 F.3d 457 (8th Cir. 1994).

16 See U.S. v. Bloomfield, 40 F.3d 910 (8th Cir. 1994).
- 233 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. DRAKE

Cite as 311 Neb. 219

into a second-tier police-citizen encounter. Goplin had a reasonable suspicion to believe a crime had occurred based on 

the totality of the circumstances, as well as probable cause to 

believe that contraband or evidence of a crime would be found 

in Drake’s vehicle. On that basis, Goplin was permitted to 

detain Drake per Terry v. Ohio,

 17 and because Drake’s vehicle 

was readily mobile, the automobile exception applied to permit a warrantless search of the vehicle. 18 Thus, when Goplin 

detained Drake and executed a warrantless search of Drake’s 

vehicle, evidence obtained as a result was not obtained in violation of the Fourth Amendment.

Upon finding contraband and drugs in Drake’s vehicle, a 

search of Drake’s person was permitted pursuant to the exception to the warrant requirement for searches incident to a valid 

arrest. 19 Evidence obtained as a result of this search also was 

not obtained in violation of the Fourth Amendment.

Based on a review of the record, the initial interactions 

between Goplin and Drake were consensual, the “free air sniff” 

by the drug dog was consensual, and the evidence obtained as 

a result of both a search of Drake’s vehicle and his person was 

not obtained in violation of the Fourth Amendment.

Because the district court’s findings of historical fact 

were not clearly erroneous and because we find no Fourth 

Amendment violation, we conclude the court properly overruled Drake’s motion to suppress.

2. Habitual Criminal

In his second assignment of error, Drake asserts that the district court erred in finding Drake to be a habitual criminal for 

purposes of enhancing his sentence. Drake argues that the plain 

language of the habitual criminal statute, § 29-2221, requires 

that the State’s evidence in a habitual criminal proceeding 

17 Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).

18 See State v. Lowman, supra note 2.

19 See id.
- 234 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. DRAKE

Cite as 311 Neb. 219

must establish by a preponderance of the evidence that Drake 

“was sent to prison for a fixed period of time of not less than 

one year and that at least one year was served in prison.” 20

According to § 29-2221:

(1) Whoever has been twice convicted of a crime, sentenced, and committed to prison, in this or any other state 

or by the United States or once in this state and once at 

least in any other state or by the United States, for terms 

of not less than one year each shall, upon conviction of a 

felony committed in this state, be deemed to be a habitual 

criminal and shall be punished by imprisonment in a 

Department of Correctional Services adult correctional 

facility for a mandatory minimum term of ten years and a 

maximum term of not more than sixty years[.]

[8] We have further noted:

In a habitual criminal proceeding, the State’s evidence 

must establish with requisite trustworthiness, based upon 

a preponderance of the evidence, that (1) the defendant 

has been twice convicted of a crime, for which he or she 

was sentenced and committed to prison for not less than 1 

year; (2) the trial court rendered a judgment of conviction 

for each crime; and (3) at the time of the prior conviction 

and sentencing, the defendant was represented by counsel 

or had knowingly and voluntarily waived representation 

for those proceedings. 21

In construing § 29-2221, Drake relies on the Black’s Law 

Dictionary definitions of the word “commit”—“[t]o send (a 

person) to prison or to a mental health facility, esp. by court 

order” 22; the word “commitment”—the “act of confining a 

person in a prison, mental hospital, or other institution” 23; and 

20 Brief for appellant at 17.

21 State v. Dixon, 286 Neb. 334, 350, 837 N.W.2d 496, 508 (2013).

22 Black’s Law Dictionary 340 (11th ed. 2019).

23 Id.
- 235 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. DRAKE

Cite as 311 Neb. 219

the word “term”—a “fixed period of time; esp., the period for 

which an estate is granted.” 24 Accordingly, Drake understands 

these words as used in § 29-2221 to mean that the State is 

required to prove that Drake “was sent to prison for a fixed 

period of time of not less than one year and that at least one 

year was served in prison” by Drake. 25

Because the State failed to show that Drake actually served 

at least 1 year on each of those sentences and the trial court 

accordingly made no such finding, Drake asserts that this 

court must vacate the district court’s determination that Drake 

was a habitual criminal, vacate the sentence it imposed, and 

remand the matter for resentencing without a habitual criminal 

enhancement. Drake cites no other authority for his reading of 

the statute, and we are not aware of any such authority.

[9] Hence, we disagree with Drake’s interpretation of 

§ 29-2221 and observe that the term “commitment,” as defined 

by Black’s Law Dictionary, has multiple meanings. Another 

definition for “commitment” is the “order directing an officer 

to take a person to a penal . . . institution.” 26 It is not within the 

province of the courts to read a meaning into a statute that is 

not there or to read anything direct and plain out of a statute. 27

This alternative definition is consistent with the plain language 

of § 29-2221, and thus, we will apply it here.

Pursuant to our reading of § 29-2221, for purposes of the 

words “committed to prison,” the State needs to show only that 

the defendant has twice been ordered by the court to be committed for at least 1 year to a penal institution. The State is not 

required to produce evidence that Drake actually served a full 

year in prison.

24 Id. at 1773.

25 Brief for appellant at 17.

26 Black’s Law Dictionary at 340.

27 Hauptman, O’Brien v. Auto-Owners Ins. Co., 310 Neb. 147, 964 N.W.2d 

264 (2021).
- 236 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. DRAKE

Cite as 311 Neb. 219

As evidence of prior convictions, the State presented exhibits 

4 and 5. Exhibit 4 contains a journal entry from November 1, 

1989, which states that Drake was “sentenced to the Department 

of Correction[s] on Count I, theft, a Class III felony, for a term 

of 1-3 years with credit for 30 days served.” Drake was also 

sentenced on a second conviction, to run concurrently. Exhibit 

5 contains a judgment and sentence from June 29, 2004, which 

states that Drake “shall be incarcerated in an institution under 

the jurisdiction of the Nebraska Department of Correctional 

Services for a period of not less than fifteen (15) months and 

not more than thirty-six (36) months.”

The language within both orders shows that the sentencing 

courts in those prior convictions ordered Drake to be taken to a 

penal institution within the control of the Nebraska Department 

of Correctional Services for a period of not less than 1 year on 

both November 1, 1989, and June 29, 2004. In other words, 

these exhibits together show that Drake has twice been committed to prison for not less than 1 year.

Based on a plain language reading of § 29-2221, the evidence presented by the State as proof of Drake’s prior convictions was sufficient for purposes of habitual criminal enhancement. Accordingly, the district court did not err in finding 

Drake to be a habitual criminal.

3. Ineffective Assistance of Trial Counsel

In his third through seventh assignments of error, Drake 

asserts that he received ineffective assistance of trial counsel. 

Drake argues that trial counsel failed to schedule a timely 

motion to suppress, to request discovery, and to subpoena witnesses for the presentation of exhibits at trial; that trial counsel 

was ineffective when he agreed to a stipulated bench trial; and 

that trial counsel generally lacked the training and experience 

needed to act as a public defender.

[10] When a defendant’s trial counsel is different from his 

or her counsel on direct appeal, the defendant must raise on 

direct appeal any issue of trial counsel’s ineffective performance which is known to the defendant or is apparent from the 
- 237 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. DRAKE

Cite as 311 Neb. 219

record; otherwise, the ineffective assistance of trial counsel 

issue will be procedurally barred. 28

[11] Once raised, an appellate court will determine whether 

the record on appeal is sufficient to review the merits of the 

ineffective performance claims. 29 The record is sufficient if it 

establishes either that trial counsel’s performance was not deficient, that the appellant will not be able to establish prejudice 

as a matter of law, or that trial counsel’s actions could not be 

justified as a part of any plausible trial strategy. 30 Conversely, 

an ineffective assistance of counsel claim will not be addressed 

on direct appeal if it requires an evidentiary hearing. 31

[12,13] The necessary specificity of allegations of ineffective assistance of trial counsel on direct appeal for purposes of 

avoiding waiver requires, at a minimum, allegations of deficient performance described with enough particularity for an 

appellate court to make a determination of whether the claim 

can be decided upon the trial record and also for a district 

court later reviewing a potential petition for postconviction 

relief to be able to recognize whether the claim was brought 

before an appellate court. 32 Assignments of error on direct 

appeal regarding ineffective assistance of trial counsel must 

specifically allege deficient performance, and an appellate 

court will not scour the remainder of the brief in search of 

such specificity. 33

(a) Failure to Timely Schedule 

Motion to Suppress

Drake first claims that trial counsel provided ineffective assistance by failing to schedule a timely hearing for 

28 State v. Abdullah, 289 Neb. 123, 853 N.W.2d 858 (2014).

29 Id.

30 State v. Lowman, supra note 2.

31 State v. Abdullah, supra note 28.

32 State v. Blake, 310 Neb. 769, 969 N.W.2d 399 (2022). See State v. Lee, 

304 Neb. 252, 934 N.W.2d 145 (2019).

33 State v. Mrza, 302 Neb. 931, 926 N.W.2d 79 (2019).
- 238 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. DRAKE

Cite as 311 Neb. 219

Drake’s motion to suppress. Assuming, without deciding, that 

trial counsel’s performance was deficient, we find that Drake 

cannot establish prejudice. The district court found that trial 

counsel had established good cause for filing the motion past 

the 10-day deadline, and the motion to suppress was thereafter 

set for a hearing and considered on the merits by the court.

Drake asserts that prejudice arose when the jury trial was 

scheduled to begin immediately after the motion to suppress 

hearing, as this “did not leave any room for any potential 

negotiation with the State . . . depending on the outcome of 

the Motion to Suppress.” 34 Drake contends that if counsel had 

filed a timely hearing, and if the motion to suppress had been 

denied, Drake would have had more opportunity either to better prepare for trial or to work with the prosecutor toward a 

plea deal such that the proceedings at the trial level would have 

gone differently.

However, the record indicates that Drake was already in 

receipt of a plea offer from the State and chose to proceed with 

trial instead. Even if his motion had been timely filed, a lack of 

success at the suppression hearing does not suggest new leverage by which Drake would be able to secure a different or better deal from the State than was already offered. And the State 

would have little incentive to agree to any offer if it knew that 

Drake was unsuccessful in his motion, regardless of whether 

the trial proceeded immediately after the suppression hearing 

or days later. Accordingly, this assertion is without merit.

(b) Failure to Request Discovery Information

Drake also assigns that trial counsel was ineffective in failing to request discovery prior to trial in the form of footage 

from the dashboard camera of Goplin’s cruiser or of Goplin’s 

body camera.

The record on appeal indicates that such performance was 

not deficient. Goplin testified that there was a dashboard 

34 Brief for appellant at 21.
- 239 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. DRAKE

Cite as 311 Neb. 219

camera on his cruiser, but that there was no footage available 

because that camera had malfunctioned. Goplin also testified 

that he was not wearing a body camera that night. In addition, 

there was a discovery stipulation in place well before trial 

wherein the parties agreed to provide discovery and reciprocal discovery prior to trial and wherein the State additionally 

acknowledged its duty to disclose certain evidence.

Trial counsel was not deficient for failing to make a specific request for discovery that did not exist, and therefore, 

Drake’s allegation of ineffective assistance of counsel is without merit.

(c) Failure to Subpoena Witnesses Necessary 

to Provide Foundation for Exhibits

Drake next asserts that trial counsel’s performance was 

deficient when he failed to subpoena witnesses who could 

offer foundation for the presentation of additional exhibits. 

Specifically, Drake argues that trial counsel made multiple 

attempts to enter exhibits 1 and 2 into evidence without first 

calling foundational witnesses, resulting in the exclusion of 

both exhibits from evidence.

However, the evidence included in exhibits 1 and 2 is cumulative of other admissible testimony and evidence. These exhibits included an incident narrative written by Goplin regarding 

the events that took place on December 28, 2018, and a York 

County sheriff’s office incident log. The incident narrative 

reflects the testimony given by Goplin at the suppression hearing, as does the incident log. Drake has failed to establish that 

counsel was ineffective. Accordingly, his argument is without merit.

(d) Stipulated Bench Trial

Drake also assigns that his trial counsel performed deficiently by agreeing to a stipulated bench trial. Drake contends 

that his trial counsel, by stipulating to the facts as set forth 
- 240 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. DRAKE

Cite as 311 Neb. 219

in exhibit 3, stipulated that 5 grams of methamphetamine 

were found on Drake’s person, as well as some paraphernalia; 

that said items were consistent with the distribution of controlled substances; and that the suspected methamphetamine 

was tested in a laboratory and confirmed to be methamphetamine. Drake argues that these stipulated facts were guaranteed to secure a conviction against him and would support a 

habitual criminal enhancement of any sentence imposed.

However, the facts as stipulated for purposes of the bench 

trial merely reflect the evidence already presented at the motion 

to suppress hearing, as well as the prior findings by the district 

court when it denied Drake’s motion to suppress. The facts 

within exhibit 3 did not stipulate to Drake’s express knowledge 

or intent, key elements necessary to obtain a conviction under 

Neb. Rev. Stat. § 28-416 (Cum. Supp. 2020), regardless of the 

facts. Contrary to Drake’s assertions, these stipulated facts did 

not “guarantee[]” his conviction, 35 but, rather, they allowed the 

parties to proceed after the suppression hearing had concluded 

without a need to resubmit evidence or testimony which either 

party had already presented to the court. Consequently, Drake’s 

counsel did not act deficiently.

Further, the stipulation of facts included a statement that 

the contraband found in Drake’s vehicle was “consistent with 

a ‘small-time’ or ‘local’ drug dealer, used in the distribution 

of controlled substances.” Despite this stipulation, and despite 

the amended information charging Drake at count I with possession of a controlled substance with intent to distribute, the 

district court found Drake guilty of only count II, possession 

of a controlled substance. That the district court found Drake 

not guilty of count I is evidence that even if Drake’s counsel 

had acted deficiently, Drake will not be able to prove that such 

performance prejudiced Drake. This claim of ineffective assistance of trial counsel is without merit.

35 Id. at 24.
- 241 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. DRAKE

Cite as 311 Neb. 219

(e) Lack of Training and Experience

Finally, Drake asserts that he received ineffective assistance 

of counsel because his trial counsel lacked proper training and 

experience for purposes of acting as a public defender.

Drake reasserts, broadly, the above-described errors and 

claims that the culmination of these errors indicates that his 

trial counsel did not perform as well as a lawyer with ordinary 

training and skill in the area of criminal law. In addition, Drake 

more specifically argues that Drake’s own comments at trial 

and sentencing prove a lack of proper counseling and advice 

from trial counsel. Drake claims that he was not adequately 

informed of the consequences of the habitual criminal sentencing and that trial counsel was not fully aware of the consequences of habitual criminal sentencing himself, asking the 

court whether it was going to sentence Drake “on the other 

charge.” Drake contends that counsel’s lack of understanding 

here prejudiced Drake because Drake did not understand the 

nature of what he was agreeing to when he turned down the 

plea deal offered by the State and continued to trial.

Here, Drake has not sufficiently alleged deficient performance. A generalized complaint regarding a lack of proper 

experience, skills, or training might be the standard by which 

this court will review the performance of counsel to determine 

whether their performance was deficient, but it is not specific 

enough, especially as stated here, to be a stand-alone claim.

Drake does not explain his basis for moving forward with 

trial, nor does he provide insight into how counsel’s advice 

or explanation of the risks or consequences of proceeding to 

trial were either incorrect or deficient. Instead, Drake claims 

that counsel “could not have adequately advised” Drake of the 

consequences because counsel “was out of his depth.” 36 We 

conclude that Drake has failed to allege this claim of deficient performance with sufficient particularity. A claim of 

36 Id. at 27.
- 242 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. DRAKE

Cite as 311 Neb. 219

ineffective assistance that is insufficiently stated is no different 

than a claim not stated at all. 37

VI. CONCLUSION

We affirm the decision of the district court, which denied 

Drake’s motion to suppress and found him to be a habitual 

criminal for purposes of sentencing.

We find that Drake’s claims of ineffective assistance of 

trial counsel are either without merit or not alleged with sufficient particularity.

Affirmed.

37 State v. Stelly, 304 Neb. 33, 932 N.W.2d 857 (2019).