Criminal Law

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.

Ct. of Appeals lacked jurisdiction to consider Dist. Ct.’s dismissal of defendant’s habeas petition on ground that defendant had failed to exhaust his state-court, post-conviction remedies. Dist. Ct.’s order was not final and appealable, where dismissal was without prejudice to defendant re-filing his habeas petition once his state-court, post-conviction proceedings had concluded. Ct. rejected defendant’s argument that Dist. Ct.’s order was actually final and appealable where he had claimed as part of his request to excuse his failure to exhaust his state-court post-conviction proceedings that state court system had taken too long to resolve his state-court, post-conviction proceedings.