Judge: Cops had ample reason to pull gun suspect out of car even before he pulled his pants down

A federal judge this week ruled prosecutors can use a gun allegedly found on Wesner Theodore as evidence against him when he goes on trial on a charge of being a convicted criminal in illegal possession of a firearm and ammunition.

Theodore's attorney had argued that because the car belonged to somebody else and was just sitting there, cops did not have "reasonable suspicion" to pull Theodore - who already has two gun convictions - out of the car without a warrant. And without that reasonable suspicion, the search that led to a discovery of a gun in his jacket was illegal.

But US District Court Judge Denise Casper concluded this week that officers had more than ample "reasonable suspicion" to think Theodore might pose a threat to them or the public or be doing something illegal when they went over to the car and tried to talk to him.

Casper wrote that the criterion was met even before officers asked Theodore out of the car, even without information from a confidential informant that a Castlegate member going by Theodore's nickname of "Weezy" may have shot a rival H-Block member on Humboldt Avenue the night before. Among the reasons: The car was registered to a suspected Castlegate member with an outstanding warrant, it was parked on Castlegate Road the night after a shooting that that guy might have been involved in and the car was in violation of Massachusetts law on car-window tinting:

Even without the confidential informant information about the shooting [possibly linking it to Theodore], the other information coupled with the suspected excessive tint violation, cumulatively, gave the officers reasonable suspicion to approach the Malibu and its driver.

With their suspicions sufficiently raised, police thus had the right to ask Theodore out of the car, the judge wrote.

As she outlined in her order, he did not make it easy:

When an officer - whom he addressed by name - tapped on the window, he rolled it down just two inches, and when the officer told him to roll it down more, he only cranked it another half inch.

When he handed over his license and the registration, his hands were shaking. "[The officer] then repeatedly instructed Theodore to show the officers his hands, which he did only intermittently as he was, at times, going into the center console, opening his jacket and putting his hands down to his waist." And he started yelling, demanding to know "Why are you fucking with me?"

The officer and a partner grew worried he might have a gun and asked him out of the car, but he refused, put his hands down his pants and told the officers they needed a warrant. Then he rolled the window back up, refused to put his hands on the wheel and pulled his pants down. Finally:

As he was being taken out of the car, Theodore said something to the effect of “fine, or here it is,” and reached toward his left breast pocket. Delahanty reacted by getting control of Theodore’s arms and frisking that area of his jacket and pulling out a firearm.

Innocent, etc.