McCall

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…

Dissenting:

I do not agree that the officer had an objectively reasonable suspicion that McCall was armed and dangerous. I also find unpersuasive the majority’s alternative holding that the frisk was justified as a search incident to arrest. In my view, the officer did not have probable cause to arrest McCall. As a result, I respectfully dissent.

I. The Officer Lacked Reasonable Suspicion to Frisk McCall

McCall concedes that the police were justified in stopping the car based on the smell of marijuana. However, “[a] lawful frisk does not always flow from a justified stop. Each element, the stop and the frisk, must be analyzed separately; the reasonableness of each must be independently determined.” United States v. Thomas, 863 F.2d 622, 628 (9th Cir.1988). A limited protective search is justified where, in the totality of the circumstances, an officer has a reasonable belief “that he is dealing with an armed and dangerous individual----” Terry v. Ohio, 392 U.S. 1, 27 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968). The proper inquiry is “whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.” Id. A mere…