             Case: 11-13043    Date Filed: 05/09/2013   Page: 1 of 7


                                                            [DO NOT PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 11-13043
                           Non-Argument Calendar
                         ________________________

                  D.C. Docket No. 4:10-cr-00029-RH-WCS-1



UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,

                                   versus

FRANCISCO PEGUERO, JR.,
a.k.a. Frank Peguero,

                                                             Defendant-Appellant.

                         ________________________

                  Appeal from the United States District Court
                      for the Northern District of Florida
                        ________________________

                                 (May 9, 2013)

Before MARCUS, WILSON and MARTIN, Circuit Judges.

PER CURIAM:

     Francisco Peguero, Jr. appeals his convictions for conspiracy to distribute
               Case: 11-13043     Date Filed: 05/09/2013    Page: 2 of 7


and possess with intent to distribute more than five kilograms of cocaine in

violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(ii), and 846 and possession with

intent to distribute more than five kilograms of cocaine in violation of 21 U.S.C. §§

841(a)(1), (b)(1)(A)(ii) and 18 U.S.C. § 2. On appeal, Peguero argues that we

should reverse the district court’s denial of his motion to suppress for three

reasons: (1) the officer lacked probable cause to stop him for speeding; (2) he was

unlawfully detained because the officer unreasonably prolonged the traffic stop;

and (3) his subsequent consent to search his vehicle was coerced and invalid. For

the reasons that follow, we affirm.

                                           I.


      “In reviewing a district court’s denial of a motion to suppress, we review its

findings of fact for clear error and its application of law to those facts de novo.”

United States v. Ramirez, 476 F.3d 1231, 1235 (11th Cir. 2007) (emphasis

omitted). “We also construe all facts in the light most favorable to the prevailing

party in the district court[—]here, the government.” United States v. Boyce, 351

F.3d 1102, 1105 (11th Cir. 2003). We review determinations regarding probable

cause de novo. United States v. Butler, 102 F.3d 1191, 1199 (11th Cir. 1997).

      “The Fourth Amendment protects individuals from unreasonable search and

seizure.” United States v. Harris, 526 F.3d 1334, 1337 (11th Cir. 2008) (per

curiam) (internal quotation marks omitted). When the police stop a motor vehicle,

                                           2
               Case: 11-13043      Date Filed: 05/09/2013   Page: 3 of 7


even for a brief period, a Fourth Amendment “seizure” occurs. Whren v. United

States, 517 U.S. 806, 809–10, 116 S. Ct. 1769, 1772 (1996). A traffic stop is

reasonable, and therefore constitutional, if the officers conducting the stop have

“probable cause to believe a traffic violation has occurred.” Harris, 526 F.3d at

1337. A determination of probable cause rests on objective factors, and the

officer’s subjective motives in making the stop are irrelevant. See Whren, 517 U.S.

at 813, 116 S. Ct. at 1774. Furthermore, “a traffic stop based on an officer’s

incorrect but reasonable assessment of facts does not violate the Fourth

Amendment.” United States v. Chanthasouxat, 342 F.3d 1271, 1276 (11th Cir.

2003). However, “a mistake of law, no matter how reasonable or

understandable,… cannot provide reasonable suspicion or probable cause to

justify a traffic stop.” Id. at 1279.

      Viewed in the light most favorable to the government, the evidence

presented at the suppression hearing shows that the officer had probable cause to

stop Peguero for speeding. At the suppression hearing, the officer testified that he

knew Peguero was speeding because he had “paced” him. Pacing is when a police

officer uses his or her own speedometer to determine the speed of the suspect’s

vehicle. Here, while the officer maintained a speed of 79 miles per hour,

Peguero’s truck pulled away, which, based on the officer’s training and experience,

demonstrated that Peguero was traveling at least 79 miles per hour. The posted


                                           3
               Case: 11-13043     Date Filed: 05/09/2013    Page: 4 of 7


speed limit for this particular stretch of highway is 70 miles per hour. The officer

further testified that he had received training in pacing and that his speedometer

had recently been calibrated to ensure accuracy. The officer had probable cause to

pull over Peguero.

                                          II.

      Peguero next argues that he was unlawfully detained because the officer

unreasonably prolonged the traffic stop. We disagree. When evaluating whether

the duration of an investigative detention is unreasonable and too intrusive, the

Supreme Court has indicated that “common sense and ordinary human experience

must govern over rigid criteria.” United States v. Sharpe, 470 U.S. 675, 685, 105

S. Ct. 1568, 1575 (1985). We have noted that “[a] traffic stop for speeding can

doubtlessly last long enough for the police to ask questions about the reasons for

speeding and to conduct a variety of checks about licenses, registration, [and]

insurance.” United States v. Hernandez, 418 F.3d 1206, 1212 n.7 (11th Cir. 2005).

      Following a stop for the purpose of issuing a citation for a routine traffic

infraction, the officer may lengthen the detention for further questioning beyond

that connected to the initial stop, if (1) the officer “has an objectively reasonable

and articulable suspicion illegal activity has occurred or is occurring;” or (2) “if the

initial detention has become a consensual encounter.” United States v. Pruitt, 174

F.3d 1215, 1220 (11th Cir. 1999). “[T]he [Supreme] Court [has] held, in a case


                                           4
               Case: 11-13043     Date Filed: 05/09/2013     Page: 5 of 7


involving a traffic stop, that ‘[a]n officer’s inquiries into matters unrelated to the

justification for the . . . stop . . . do not convert the encounter into something other

than a lawful seizure, so long as those inquiries do not measurably extend the

duration of the stop.’” United States v. Griffin, 696 F.3d 1354, 1361 (11th Cir.

2012) (quoting Arizona v. Johnson, 555 U.S. 323, 333, 129 S. Ct. 781, 788

(2009)).

      Here, the district court did not err when it concluded that Peguero was

legally detained. The dashboard video indicates that as the officer filled out the

warning form, he asked a series of routine questions to Peguero. The officer

testified that the process of issuing a warning form usually takes about 10 minutes.

Approximately 10 minutes had elapsed from when Peguero was stopped to the

time Peguero consented to the officer’s search of his vehicle. Even if the officer’s

questions extended the stop by a few moments, his questions were asked during the

course of related administrative tasks. See id. Moreover, once Peguero consented

to the search, the interaction became consensual for Fourth Amendment purposes.

The officer’s questions did not materially extend the detention.

                                           III.

      In the absence of probable cause or reasonable suspicion, law enforcement

officers “may nonetheless search an individual without a warrant so long as they

first obtain the voluntary consent of the individual in question.” United States v.


                                            5
              Case: 11-13043     Date Filed: 05/09/2013    Page: 6 of 7


Blake, 888 F.2d 795, 798 (11th Cir. 1989). “The determination as to whether a

suspect’s consent is voluntary is not susceptible to neat talismanic definitions;

rather, the inquiry must be conducted on a case-by-case analysis.” Id. In

determining whether the consent was voluntary, we will scrutinize the facts and

strike a balance between a suspect’s right to be free from coercive conduct and the

legitimate need of the government to conduct lawful searches. See id.

      Relevant factors in determining voluntariness, none of which are dispositive,

include:

      [(1)] [the] voluntariness of the defendant’s custodial status, [(2)] the
      presence of coercive police procedure, [(3)] the extent and level of the
      defendant’s cooperation with police, [(4)] the defendant’s awareness of his
      right to refuse to consent to the search, [(5)] the defendant’s education and
      intelligence, and, significantly, [(6)] the defendant’s belief that no
      incriminating evidence will be found.

United States v. Chemaly, 741 F.2d 1346, 1352 (11th Cir. 1984). “While

knowledge of the right to refuse consent is one factor to be taken into account, the

government need not establish such knowledge as the sine qua non of an effective

consent.” Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S. Ct. 2041, 2048

(1973). Thus, the government is not required to prove that the suspect was aware

of the right to refuse to consent. Chemaly, 741 F.2d at 1353.

      The district court properly concluded that Peguero’s consent to the search of

his truck was given freely and voluntarily. Specifically, the dashboard video and

officer’s testimony indicate that the entire encounter was free of coercive

                                          6
              Case: 11-13043     Date Filed: 05/09/2013    Page: 7 of 7


influence. Peguero freely conversed with the officer, laughed and made small talk,

and at one point offered to let the officer search an ice chest in his truck. The

officer also specifically noted that Peguero was cooperative and polite during the

encounter. Although the officer was in uniform, he did not display a gun, did not

put Peguero in his patrol car, did not handcuff him, did not threaten him, did not

imply that there would be consequences for refusing the search, did not physically

restrain him, and did not withhold his identification documents. See id. at 1352.

The record does not indicate whether the officer explicitly told Peguero that he

could refuse consent to the search, but the government was not required to prove

that Peguero was expressly informed that he could refuse. Given the

well-concealed location of the hidden compartment in the gas tank, Peguero may

have thought that the officer would not find the cocaine. Peguero’s consent to the

search was voluntary. The district court’s order denying Peguero’s motion to

suppress is

      AFFIRMED.




                                           7
