* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-11167

Cons. w/ No. 11-11183

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

COREY VICTOR ROBERSON,

Defendant-Appellant

Appeals from the United States District Court

for the Northern District of Texas

USDC No. 3:00-CR-385-1 & 3:11-CR-165-1

Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.

PER CURIAM:*

Appellant Corey Victor Roberson challenges his conviction for being a felon

in possession of a firearm, arguing that police officers had no reasonable

suspicion for the Terry stop and frisk that led to the discovery of his firearm.

Roberson also challenges the district court’s decision to revoke his supervised

release, which was made partly because of Roberson’s firearm conviction. For

the reasons that follow, we AFFIRM.

United States Court of Appeals

Fifth Circuit

F I L E D

November 6, 2012

Lyle W. Cayce

Clerk
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2

TheTerry stop and frisk arose after Roberson boarded a Dallas Area Rapid

Transit (DART) train wearing a bandana around his face. The DART train

operator observed him boarding and called DART control about the situation.

A dispatch call was sent out to DART transit police reporting that there were

two black males wearing bandanas, and that patrons were afraid that a robbery

was about to take place.

A patrol officer, Fernando Ibarra, responded to the call and arrived to

conduct a sweep of the train. During his sweep, he identified Roberson and

another black male, both of whom he believed matched the description of the

call. He asked Roberson and the other male to leave the train and remain on the

DART platform with him. It was later revealed that Roberson and the other

male, LaDarrell Brown, did not know each other. Shortly after two back-up

officers arrived, Ibarra conducted a patdown search of Roberson, during which

he discovered a pistol and ammunition. Roberson was arrested and placed in a

DART patrol car. While in the car, Roberson called his sister and mother on his

cell phone and made incriminating statements, which were recorded by the

patrol car’s audio and video equipment.

Roberson was charged with being a felon in possession of a firearm, in

violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). He had formerly been convicted

in federal district court of bank robbery and use of a firearm during a crime of

violence, and had been under supervised release.

Roberson moved in district court to suppress the gun, ammunition, and

cell phone statements on the ground that Officer Ibarra’s Terry stop and frisk

violated the Fourth Amendment, and that therefore the pieces of evidence were

fruits of an illegal seizure and search. Following a suppression hearing with

witness testimony, the district court denied Roberson’s motion. Roberson then
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3

waived his right to a jury trial. The district court found Roberson guilty of being

a felon in possession of a firearm.

In a subsequent supervised release revocation hearing, the court heard

additional testimony from a government witness who testified that Roberson had

violated various conditions of his supervised release, including two conditions

related directly to his firearm conviction. On this basis, the district court

revoked Roberson’s supervised release.

Roberson appeals both the firearm conviction and the revocation of

supervised release.

I.

In considering a suppression ruling, we review all findings of fact for clear

error and review all questions of law de novo. Ornelas v. United States, 517 U.S.

690, 699, 116 S. Ct. 1657, 1663 (1996); United States v. Macias, 658 F.3d 509,

517 (5th Cir. 2011). Historical facts about events leading up to the search or

seizure are reviewed for clear error, while the district court’s ultimate conclusion

on reasonable suspicion is reviewed de novo as a mixed question of law and fact.

United States v. Tompkins, 130 F.3d 117, 120 (5th Cir. 1997). We view the

evidence in the light most favorable to the prevailing party—here the

Government—and make all inferences in favor of the denial of the motion to

suppress. United States v. Polk, 118 F.3d 286, 296 (5th Cir. 1997); see also

Macias, 658 F.3d at 517.

The salient issue on appeal is whether there was reasonable suspicion for

Officer Ibarra’s stop and frisk of Roberson, as required by the Fourth

Amendment and Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868 (1968). Reasonable

suspicion is measured in light of the totality of the circumstances and must be

supported by particular, articulable, and objective facts. UnitedStates v. Arvizu,

534 U.S. 266, 273, 122 S. Ct. 744, 750 (2002); United States v. Michelletti, 13
No. 11-11167

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4

F.3d 838, 840 (5th Cir. 1994) (en banc). The officer must have reasonable

suspicion that a suspect “has been, is, or is about to be engaged in criminal

activity.” United States v. Vickers, 540 F.3d 356, 361 (5th Cir. 2008) (citing

United States v. Hensley, 469 U.S. 221, 227, 105 S. Ct. 675, 679 (1985)). Whether

an officer has reasonable suspicion is based on facts known to the officer at the

time of the search or seizure. Id.; Florida v. J.L., 529 U.S. 266, 271, 120 S. Ct.

1375, 1379 (2000). In the course of a search or seizure, officers are permitted “to

draw on their own experience and specialized training to make inferences from

and deductions about the cumulative information available to them that ‘might

well elude an untrained person.’” Arvizu, 534 U.S. at 273, 122 S. Ct. at 750–51

(citation omitted). In a reasonable suspicion analysis, a court examines

“whether the officer’s action was justified at its inception” and “whether the

officer’s subsequent actions were reasonably related in scope to the

circumstances that justified the stop.” United States v. Brigham, 382 F.3d 500,

506 (5th Cir. 2004) (en banc) (citing Terry, 392 U.S. at 19–20, 188 S. Ct. at 1879).

Roberson first argues that Officer Ibarra’s stop and frisk were unjustified

at the inception because Ibarra improperly relied on the DART dispatch call,

which Roberson characterizes as a functionally anonymous tip. However, the

dispatch call here is vastly different from an anonymous 911 call. Ibarra was a

DART police officer, and his authority and responsibility were limited in focus

to DART trains and property. As such, when he received a DART dispatch call

regarding a possible robbery on a DART train, his natural expectation was that

someone on the train had called. In any case, at the moment that Ibarra

conducted a sweep of the train, there was not yet a Fourth Amendment seizure:

the Terry stop took place, at the earliest, when Ibarra asked Roberson to leave

the train. By the time Ibarra effected a stop, he had personally observed enough

facts to give rise to reasonable suspicion justifying his stop. Thus, while the call
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1

In his initial brief, Roberson states that he “does not argue—and in any event, this

Court would not accept the notion—that ‘race’ and ‘attire’ are per se exempt from a Terry

calculus. Obviously they have a place in describing a person.”

5

was a valid basis for Ibarra’s arrival on the train, it became largely irrelevant

thereafter.

Roberson also seeks to devalue the dispatch call by asserting that it

contained no information about any criminal activity. This is simply wrong. The

DART dispatch log itself reported “Two BM with Banadana [sic] on[.] Patron

feeling like they may be robbed.” Officer Ibarra testified that the dispatch call

came out as “the patrons on the train were afraid something was about to

happen, . . . the train was about to be robbed at the time.” This report clearly

indicated the criminal activity about which Ibarra should investigate. See

Vickers, 540 F.3d at 361. Roberson’s attempt to devalue the DART dispatch call

is unavailing, and the call was a proper basis for Ibarra’s arrival on and sweep

of the train.

Second, Roberson argues that DART police improperly relied on his race

when forming reasonable suspicion. Inasmuch as Roberson seeks to argue that

race cannot be used in a reasonable suspicion calculus where it was an improper

or unjust basis for a seizure or search (such as in racial profiling cases), he states

the obvious. Here, however, race was used only as a way to describe the suspect,

and there is no evidence that it was used for any other purpose. Roberson

himself acknowledges that race may be used for identification purposes in

reasonable suspicion cases.1 Therefore, race was not an improper basis for

Officer Ibarra’s Terry stop and frisk.

Third, Roberson argues that his attire—that is, the bandana covering his

face—was not a legitimate basis for reasonable suspicion. He does not cite any

case law holding that attire is an inherently inappropriate factor for a
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2

Indeed, Roberson cites only United States v. Henry, 372 F.3d 714, 715–16 (5th Cir.

2004), to argue that “this Court has considered attire as a basis for reasonable suspicion only

in conjunction with other affirmative acts suggesting criminality.” Even by Roberson’s

characterization, Henry is not a case only about attire. In Henry, attire constituted only one

factor in a litany of factors that served the basis for officers’ reasonable suspicion. Therefore,

Henry reflects the basic principle that whether or not police have reasonable suspicion to

conduct a seizure or search is inherently fact-intensive. See United States v. Ibarra-Sanchez,

199 F.3d 753, 759 (5th Cir. 1999) (“Any analysis of reasonable suspicion is necessarily

fact-specific, and factors which by themselves may appear innocent, may in the aggregate rise

to the level of reasonable suspicion.”).

6

reasonable suspicion calculus.2 Roberson’s principal contention regarding his

attire is that there are reasons other than robbery that he might have been

wearing a bandana, namely that it was cold. During the suppression hearing,

Roberson presented evidence that a cold front had developed in Dallas that

evening, and that at the time he boarded the DART train, the temperature was

possibly 40 degrees Fahrenheit with wind chill, and thatthe inside temperature

of the train was roughly similar. On the other hand, the train conductor and

Officer Ibarra testified that it was not that cold on the train and that the train

had a heater. The Government also presented video evidence that while some

officers were wearing jackets on the scene, others were wearing short sleeves.

This conflicting evidence does not clearly support Roberson’s portrayal of the

events, and thus we defer to the district court’s resolution of the facts, since the

court was uniquely situated to determine the credibility and reliability of the

testimony. The district court did not clearly err in finding that Roberson was

wearing the bandana for reasons unrelated to the weather.

Fourth, Roberson contests the district court’s conclusions over four facts

related to his and others’ behavior: that other passengers were frantic and

frightened during Ibarra’s sweep and they gestured toward Roberson with their

heads and eyes; that Roberson looked straight ahead and did not pay attention

to Ibarra when the officer stepped onto Roberson’s train car; that Roberson was
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7

quiet and cooperative when Ibarra asked him to get off the train, in contrast to

Brown who loudly protested; and that Roberson’s eyes were scanning back and

forth while on the DART platform, as if he were trying to escape. Roberson does

not argue that these facts are precluded from a reasonable suspicion calculus,

but rather he disagrees with the district court’s conclusions regarding what the

facts should have suggested to Officer Ibarra at the time. For our purposes, it

is enough to emphasize that these behavioral facts are to be construed in favor

of the Government. Polk, 118 F.3d at 296. Officer Ibarra could reasonably have

surmised from other DART passengers’ “frantic mode” and gestures that

criminal activity was afoot. Further, Ibarra could reasonably have concluded,

based on his experience, that Roberson’s silence was suspicious, especially at a

time when it would have been normal in Ibarra’s judgment for a suspect to be

vocal. Finally, what Roberson dismisses as a mere “ophthalmological” state

could very well have indicated to Ibarra that Roberson was looking for an escape

route. Granted, these are not the only explanations for Roberson’s behavior, but

they are reasonable ones. Once we construe these behavioral facts in favor of the

Government, there was clearly a sound basis for Ibarra’s Terry stop and frisk.

After Officer Ibarra detained Roberson on the DART platform, the DART

officers’ subsequent actions were “reasonably related in scope to the

circumstances that justified the stop.” Brigham, 382 F.3d at 506. The officers’

conduct was generally reasonable, since the entire process from Ibarra’s arrival

on the train to the discovery of Roberson’s firearm took only six minutes, and the

DART officers did not draw any weapons or use any force until Roberson’s

firearm was discovered. More specifically, the officers had reasonable grounds

to conduct a Terry frisk.

A Terry frisk may be conducted where the officer “is justified in believing

that the individual whose suspicious behavior he is investigating at close range
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3 Admittedly, there are facts to suggest that once Roberson was detained on the DART

platform, he was no longer “presently dangerous.” In particular, Roberson was seated, quiet,

and boxed in by three police officers. A court should not ignore facts tending to lessen an

officer’s suspicions that criminal activity is afoot. Cf. Bigford v. Taylor, 834 F.2d 1213, 1218

(5th Cir. 1988) (“As a corollary . . . of the rule that the police may rely on the totality of facts

available to them in establishing probable cause, they also may not disregard facts tending to

dissipate probable cause.”) (footnote omitted). However, as emphasized by the district court,

nor is an officer required to rule out all possibility of innocent behavior before initiating a Terry

encounter. None of these facts are incongruent with DART officers’ reasonable concern that

Roberson posed an imminent danger to them and to others, especially in light of their belief

that he was about to commit a robbery.

8

is armed and presently dangerous to the officer or to others.” Terry, 392 U.S. at

24, 88 S. Ct. at 1881. Here, the entire series of events originating with the

DART dispatch call gave DART officers reasonable suspicion to believe that

Roberson was about to commit a robbery, and thus that he was armed and posed

a danger to the officers and the passengers. For example, evidence was

submitted that the officers believed Roberson was scanning the DART platform

to find an escape, meaning that he also could have attempted to break off and

turn a weapon on the officers or on others nearby. Given these facts, it was

reasonable for the officers to conduct a Terry frisk of Roberson.3

In summary,the DART dispatch call, including its reference to Roberson’s

attire;the behavior of other passengers on the train when Officer Ibarra arrived;

and Roberson’s behavior when Ibarra approached and interacted with him were

all sufficient grounds for reasonable suspicion. Ibarra and the DART police were

justified in conducting aTerry stop of Roberson, and alltheir subsequent actions,

including Ibarra’s Terry frisk of Roberson, were reasonably related in scope to

the circumstances that justified the stop. Accordingly, there was reasonable

suspicion for the stop and frisk, and we therefore affirm the district court’s

judgment of conviction.
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4 These three conditions were that“[t]he defendant shall not associate with any persons

engaged in criminal activity, and shall not associate with any person convicted of a felony

unless granted permission to do so by the probation officer”;“[t]he defendant shall refrain from

excessive use of alcohol and shall not purchase, possess, use, distribute, or administer any

controlled substance or any paraphernalia related to any controlled substances, except as

prescribed by a physician”; and “[t]he defendant shall notify the probation officer within

seventy-two hours of being arrested or questioned by a law enforcement officer.”

9

II.

In addition, Roberson appeals the district court’s decision to revoke his

supervised release. The Government prevails on this appeal for three reasons.

First, Roberson makes no argument and provides no citations of law to support

this appeal. Second, there is no evidence that the district court placed any

special reliance on Roberson’s firearm conviction when it revoked his supervised

release. On the contrary, the court held a thorough revocation hearing, during

which it heard from a government witness who testified that Roberson had

violated three mandatory conditions that had nothing to do with his firearm

conviction and thus would have been independently sufficient for revocation.4

Third, the exclusionary rule does not apply to supervised release revocation

hearings absent police harassment. United States v. Montez, 952 F.2d 854, 857

(5th Cir. 1992). Roberson has not alleged, and there is no evidence of, police

harassment. In fact, as has already been discussed, the DART officers’

treatment of Roberson was reasonable. Therefore, we affirm the district court’s

judgment revoking Roberson’s supervised release.

AFFIRMED.