CA5: Wearing a bandana over one’s face on a transit train justified stop and frisk

DART transit operators called central control that two men got on a train wearing bandanas over their faces. Customers were fearful of a robbery. A transit police officer swept the train finding them, and they had reasonable suspicion for a frisk when the defendants were found. The call was not treated as an anonymous call, and the choice of wearing a bandana over one’s face justified the officer’s actions. The district court was not clearly wrong. While defendant claimed it was cold, video of the stop and frisk showed officers in short sleeves. United States v. Roberson, 496 Fed. Appx. 390 (5th Cir. 2012):

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 reasonable suspicion calculus. 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.