U.S. v. Leo

In prosecution on unlawful possession of gun charge, Dist. Ct. erred in denying defendant’s motion to suppress gun seized by police from defendant’s backpack during encounter in street with police after police had received tip that individual matching defendant’s description was involved in recent attempted burglary. While officers could have properly stopped and questioned defendant pursuant to Terry, police officer could not have conducted warrantless search of defendant’s backpack as part of safety measure for police officer, where defendant was handcuffed at time of search. Moreover, search of defendant’s backpack could not be justified as search incident to arrest, since defendant was not arrested until after search of his backpack had occurred. Fact that defendant would have regained control of backpack and gun once officer would have released him (in absence of any knowledge of defendant’s gun possession) does not require different result.