MEMORANDUM *
Matthew McCall appeals the district court’s order denying his motion to suppress a loaded gun found in his back pocket. McCall asserts that the search violated his Fourth Amendment Rights. We disagree.
The arresting officer had reasonable suspicion to frisk McCall for weapons because “a police officer who reasonably believes that a suspect could be armed and presently dangerous may frisk the suspect to determine whether the person is carrying a weapon.” 1 McCall waived his right to appeal the issue that his investigative detention turned into a custodial arrest when he was handcuffed because he did not raise that issue before the district court so we need not reach the question.2 The officer had reasonable suspicion, and the furtive movement in the car, the risk that McCall had a sharpened screwdriver to use for car burglaries, the hour, and the darkness of the location gave the officer reasonable concern for his own safety.
Alternatively, the frisk that turned up the gun was a legitimate search incident to arrest, assuming the handcuffs made this an arrest. The driver’s statement that “we” were smoking marijuana, combined with the odor of marijuana smoke, the observation that the car emitting marijuana smoke had been moving, and that it was McCall who made the furtive movement (which could indicate that he was hiding or retrieving a weapon or hiding a stash) gave the police officer probable cause for arrest for possession of *648marijuana3 and for transporting marijuana.4 Although California law requires release after an arrest for violation of the statute prohibiting possession of not more than 28.5 grams of marijuana after presenting satisfactory identification, by its terms, “in which a person is arrested for a violation of this subdivision,” the statute contemplates that arrest for violation of the subdivision is permissible. In any event, the officer was not obligated to accept as true what the driver claimed, that the amount of marijuana in the car was merely a “roach.” The police officer therefore lawfully arrested McCall and conducted a proper search incident thereto.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
. United States v. Hartz, 458 F.3d 1011, 1018, (9th Cir.2006) (internal citations and quotations omitted).
. See United States v. Flores-Montano, 424 F.3d 1044, 1047 (9th Cir.2005).
. Cal. Health & Safety Code § 11357.
. Cal. Health & Safety Code § 11360.