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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

UNITED STATES OF AMERICA

v. CASE NO.: 4:10cr29-SPM

FRANK PEGUERO, JR.

Defendant.

___________________________/

ORDER DENYING MOTION TO SUPPRESS

Defendant Frank Peguero, Jr. is charged with possession with intent to

distribute more than 5 kilograms of cocaine and conspiracy to do the same. The

cocaine was found when Defendant consented to a search of his truck after a

traffic stop on I-10 in Madison, County, Florida. Defendant contends that the

stop was illegal because the deputy sheriff engaged in racial profiling and did not

have probable cause to stop him. Defendant also contends that his consent to

search his truck was not voluntary. 

The Court heard testimony and arguments on September 20, 2010. The

parties submitted written arguments before the hearing (docs. 22 and 23) as well

as supplemental written arguments afterward (docs. 27 and 28). Upon

consideration of the evidence and the arguments, Defendant’s motion to
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suppress will be denied.

 Background

At approximately 1:00 a.m. on March 4, 2010, Madison County Sheriff’s

Deputy Doug Haskell was parked on the westbound shoulder of I-10 while

completing a traffic stop. Deputy Haskell saw Defendant’s truck approaching

from the eastbound lane, slowing down abruptly as it passed.1

 Shining a

flashlight on the truck, Deputy Haskell could see that the truck was maroon and

had four doors. Given the darkness, distance, and speed of the passing truck,

he could not see how many people were inside or discern the ethnicity of any

occupant. He did, however, see that the truck had a Texas tag.

Deputy Haskell turned across the median strip and headed eastbound to

follow the truck. When he spotted the truck, Deputy Haskell lagged behind

approximately 150 to 200 yards and used his speedometer to pace its speed. At

a steady speed of 79 miles an hour, the truck was slowly pulling away from

Deputy Haskell. 

Deputy Haskell activated his blue lights and the car’s recording equipment,

1

 Contrary to Defendant’s argument, Defendant was not required to slow

down under Florida’s move over act, which requires vehicles approaching an

emergency vehicle to move one lane over or, if on a two lane road, to slow down.

§ 316.126 (1)(b). Defendant was not traveling on a two lane road. Nor was he

traveling in the lane next to where Deputy Haskell was parked. He was traveling

on an interstate highway, going in the opposite direction, and separated from

Deputy Haskell by two or three lanes of traffic and a thirty-six foot wide median.

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which is programmed to save video taken from the car’s camera from 

approximately one minute before the blue lights are activated and video taken

thereafter. The video shows Defendant’s truck veering off toward an exit, then

veering back onto the road, and driving over the edge of the lane once more. 

When the blue lights came on, Defendant’s truck slowed down, then pulled over

to the side of the road. The recording shows the conversation that Deputy

Haskell had with Defendant and Defendant’s wife.

From the time the truck pulled over to the time Defendant consented to a

search, approximately ten minutes passed. During this time, Deputy Haskell ran

Defendant’s driver’s license, checked for warrants, retrieved the truck’s

registration from Defendant’s wife, ran the registration, spoke to Defendant about

the tires on the truck2, and spoke with Defendant and his wife about their

destination. Deputy Haskell did not issue a speeding ticket to Defendant but

instead wrote a written warning. He asked Defendant if Defendant was tired or

drinking alcohol and pointed out that Defendant’s truck had veered outside the

lane while the Deputy was following.3 

2

 Defendant acknowledged that he changed his original tires to a larger

size, and had set his cruise control on 70 m.p.h. A taller tire will make the

speedometer read below the vehicle’s actual speed.

3

 Although Defendant argues that he did not commit a traffic violation by

failing to maintain a single lane, it is a moot point. Deputy Haskell stopped

Defendant for speeding, not for failure to maintain a single lane. Deputy Haskell

mentioned Defendant’s movement out of the lane because he was concerned

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During their conversation, Defendant told Deputy Haskell that he needed

to find a gas station, which surprised Deputy Haskell because Defendant had

passed an exit with a gas station less than a mile behind. Deputy Haskell

learned from Defendant that Defendant had been driving for ten hours and was

traveling from Edinburg, Texas to Frostproof, Florida, to pick up his niece. 

Defendant’s wife identified their destination as Tampa, Florida, which is

approximately seventy miles from Frostproof. 

Defendant told Deputy Haskell that he was not falling asleep at the wheel

and that he had not been drinking. Defendant denied having alcohol in the truck

and told Deputy Haskell that he could search the cooler. Deputy Haskell asked

Defendant if he had contraband, or weapons, or large amounts of money in his

truck, and Defendant stated no. When Deputy Haskell asked Defendant if he

had “any problem if I search your truck?”, Defendant shook his head and said

“no.” This occurred at approximately 1:11 a.m. just after Deputy Haskell had

written the warning ticket and returned Defendant’s license4

 and registration.

Deputy Haskell asked Defendant’s wife to exit the truck so he could

search. She lost hold of the lap dog she had been holding as she exited and

that Defendant was overly tired or otherwise impaired, which is a reasonable

concern when a driver crosses back and forth over the lane line. 

4

 Defendant did not have his actual driver’s license to give to Deputy

Haskell. He only had a paper copy of it, which Deputy Haskell returned with the

registration when he gave Defendant the warning ticket.

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appeared to Deputy Haskell to be nervous. Inside the truck, Deputy Haskell saw

air fresheners and noticed that Defendant and his wife had only two small bags,

despite the fact that they were on a long trip. He noticed that the truck was

unusually clean–even the inside of the fender wells had been wiped down. 

Deputy Haskell saw fresh tool marks and hand prints on the gas tank. 

When tapped, it gave a dull thud rather than a hollow or sloshing sound. In

response to Deputy Haskell’s inquiry, Defendant denied having any work done to

the truck other than new tires. Deputy Haskell called another deputy for help. 

He then took his trained drug detection dog around the truck and the dog made a

positive alert to the gas tank. A density meter Deputy Haskell used to check the

tank indicated that a solid substance was inside.

Deputy Haskell asked Defendant if he could take the truck to a nearby

garage to check the gas tank. Defendant consented. When the sending unit for

the gas gauge was removed, a thirty kilogram package of cocaine was

discovered.

Discussion

A law enforcement officer may stop a vehicle if he has reasonable

suspicion to investigate criminal activity or probable cause to believe that a traffic

violation has occurred. United States v. Spoerke, 568 F.3d 1236, 1248 (11th

Cir. 2009). In this case, Deputy Haskell was justified in stopping Defendant’s

truck because he had probable cause to believe Defendant was speeding. 

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Defendant’s concern that he had been targeted because he fit a drug profile is

irrelevant because Deputy Haskell had probable cause to stop Defendant for

speeding. “Subjective intentions play no role in ordinary, probable-cause Fourth

Amendment analysis.” Whren v. United States, 517 U.S. 806, 813 (1996). 

Moreover, Deputy Haskell testified that he could not see the occupants of the

vehicle. There is no evidence that his decision to stop the truck was based on

the occupants’ race or ethnicity.

The Court credits as true Deputy Haskell’s testimony that he paced

Defendant’s truck at over 79 miles per hour.5 Although Defendant argues that

Deputy Haskell could not accurately pace a vehicle from more than 100 yards

away, the Deputy could at least determine that Defendant’s truck was pulling

away when he maintained a speed of 79 miles per hour. Deputy Haskell’s

testimony was corroborated by the testimony of the expert witnesses, including

Defendant’s experts, all of whom studied the video and determined that

5

 Defendant argues against the admission of the pacing evidence

because the Government did not provide in its discovery disclosures a copy of

the certificates for the speedometer calibration and Deputy Haskell’s training. 

The Government did not violate the discovery rule because the Government did

not intend to use the certificates as evidence-in-chief at trial and the certificates

were not material to the preparation of the defense. See N.D. Fla. Loc. R.

26.3(B). In any event, there was no purposeful concealment of evidence by the

Government and Defendant has suffered no prejudice by not receiving the

certificates earlier.

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Defendant’s truck was traveling over the posted speed limit of 70 miles per hour.6

Defendant contends nevertheless that Deputy Haskell did not have

probable cause to stop him for speeding because Deputy Haskell decided only to

issue a warning. Any speed above the posted limit, however, is a traffic

infraction that will justify a traffic stop, and a warning is appropriate when the

infraction is for speeding less than five miles above the posted limit. Fla. Stat. §

318.18(3)(b). 

Defendant argues that even if the initial stop was lawful, Deputy Haskell

unnecessarily extended the time to write the warning and coerced Defendant to 

consent to the search. A traffic stop “must last no longer than is necessary to

effectuate the purpose of the stop." United States v. Pruitt, 174 F.3d 1215, 1220

(11th Cir. 1999) (internal citations omitted). A police officer may lengthen the

detention for questioning beyond that related to the initial stop in two

circumstances: (1) when the officer has an objectively reasonable suspicion that

criminal conduct has been or is occurring, and (2) when the initial stop becomes

6

 Defense expert Victor DeBrunner estimated Defendant’s speed at 72.8

to 73.6 miles per hour. Defense expert Chris Yates estimated Defendant’s speed

at various points ranging between 72.4 miles per hour and 77.3 miles per hour. 

The estimates do not contradict the testimony of Deputy Haskell that he paced

Defendant’s truck at over 79 miles per hour because the pacing occurred before

the recording starts. By the time the recording starts, it is likely that Defendant

had seen Deputy Haskell because the distance between them had closed

considerably. Defendant’s serve at the exit suggests that he had slowed and

considered turning off.

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a consensual encounter. See United States v. Ramirez, 476 F.3d 1231, 1237

(11th Cir. 2007). Courts look to the totality of the circumstances when

determining whether a stop has become consensual.

In this case, the traffic stop conducted by Deputy Haskell was not

unreasonably, unusually, or outrageously lengthy, lasting approximately ten

minutes when Defendant gave his consent to search the truck. Throughout this

time, Deputy Haskell was engaged in administrative matters pertinent to the

initial stop, such as checking Defendant’s driver’s license, checking for

outstanding warrants, and waiting for Defendant’s wife to produce the vehicle

registration. 

Once Deputy Haskell gave the warning ticket to Defendant and returned

the copy of his license and registration, he asked for consent to search the truck. 

Deputy Haskell did not prolong the traffic stop to obtain consent and Defendant

freely and voluntarily consented to a search of his truck.

 The voluntariness of consent is determined by "analyzing all the

circumstances of an individual consent . . . , [and by] careful sifting of the unique

facts and circumstances of each case. . . ." Schneckloth v. Bustamonte, 412

U.S. 218, 33 (1973). Some factors to consider are whether the defendant was

free to leave, the existence of coercive police procedure, the extent of the

defendant’s cooperation or awareness of a right to refuse consent, the ability of

the defendant to refuse consent, the extent of the defendant’s education and

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intelligence, and whether the defendant believed that no incriminating evidence

would be found. United States v. Ramirez-Chilel, 289 F.3d 744, 752 (11th Cir.

2002). 

Consideration of such factors in this case shows that Defendant’s consent

to search was freely and voluntarily given. First, no coercive police procedures

were used. Deputy Haskell did not display his weapon and he spoke in a

conversational tone with Defendant. Defendant was not placed under arrest

when he gave his consent, he was only issued a speed warning and his licence

and registration were returned. See Ramirez, 476 F.3d at 1238-40 (under

reasonable innocent person standard, post-citation conversation between officer

and defendant deemed consensual when license and registration have been

returned).

Second, Defendant cooperated fully during the traffic stop and during the

consensual search. Although Deputy Haskell did not expressly advise Defendant

that he could refuse consent to search, Defendant has had prior law enforcement

encounters, including two speeding tickets issued on January 29, 2010, and prior

arrests for driving while impaired, driving without a license, and forgery. Thus he

has experience with the criminal justice system and was likely aware of his right

to refuse consent. 

Defendant argues that the wording used by Deputy Haskell–“Do you have

any problems if I search your truck?”–was ambiguous and that it could have been

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taken as an implied threat or a confrontational challenge to object to a search of

the truck. In tone and context, however, there was nothing coercive about

Deputy Haskell’s request when viewed objectively or when viewed from

Defendant’s standpoint. 

Defendant is of a mature age (49 years old). He has lived in the United

States his entire life and communicates well in English. There is no indication

that he suffers from low intelligence or educational deficits that would make it

difficult for him to comprehend the request to search. In fact, it is likely that

Defendant consented to the search because he believed that no incriminating

evidence would be found. The cocaine was particularly well concealed inside the

gas tank. Only an experienced, alert, and diligent officer would notice the clues

to its hiding place. Upon consideration of the all the circumstances, the Court

finds that Defendant’s consent to search was freely and voluntarily given.

The subsequent search of the gas tank was supported by Defendant’s

consent as well as probable cause based on the alert made by the trained drug

dog. United States v, Steed, 548 F.3d 961, 974-75 (11th Cir. 2008). Among

other factors giving rise to probable case were the marks on the gas tank, the

wiping of the fender wells, the air fresheners, the inconsistencies concerning the

travel destination, the lack of baggage, the fact that the truck came from a drug

source area, and the nervousness of Defendant’s wife. All of these

circumstances gave rise to probable cause to look inside the gas tank.

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Conclusion

Deputy Haskell had probable cause to stop Defendant’s truck for 

speeding. He did so without knowledge or regard to the occupants’ race or

ethnicity. The traffic stop was no longer than necessary to issue a warning ticket. 

Thereafter, Defendant freely and voluntarily consented to a search of his truck,

which gave rise to probable cause that drugs were concealed in the gas tank. 

Based on the foregoing, it is

ORDERED AND ADJUDGED: Defendant’s Motion to Suppress (doc. 22)

is denied.

DONE AND ORDERED this 7th day of October, 2010.

 s/ Stephan P. Mickle 

Stephan P. Mickle

Chief United States District Judge

CASE NO.: 4:10cr29-SPM