     Case: 11-11167     Document: 00512044130         Page: 1     Date Filed: 11/06/2012




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                                            FILED
                                                                         November 6, 2012

                                     No. 11-11167                          Lyle W. Cayce
                                 Cons. w/ No. 11-11183                          Clerk



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.


        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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      The Terry 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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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. United States v. Arvizu,
534 U.S. 266, 273, 122 S. Ct. 744, 750 (2002); United States v. Michelletti, 13


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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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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



       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.”

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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 that the 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


       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.”).


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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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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 a Terry stop of Roberson, and all their 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.




       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.

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                                               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.




       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.”

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