Commonwealth v. Lewis: Pennsylvania Supreme Court Retains “High‑Crime Area” as a Terry Factor, Offers Non‑Mandatory Guideposts; Justice Wecht Urges Its Abandonment Under Article I, Section 8

Court: Supreme Court of Pennsylvania (Eastern District)

Date: September 25, 2025

Case: Commonwealth v. Anthony Lewis, No. 37 EAP 2024

Opinion excerpt analyzed: Concurring and Dissenting Opinion by Justice Wecht, concurring in the judgment, dissenting from the constitutional analysis

Introduction

This case arises from a street encounter in Philadelphia during which officers observed a group of men who appeared to be engaged in unlawful street gambling under the Philadelphia City Code. When officers approached, Anthony Lewis fled. During the ensuing pursuit, he discarded a firearm, which officers recovered. Lewis moved to suppress the gun, arguing the seizure was unlawful. The trial court denied suppression; the Superior Court affirmed; the Pennsylvania Supreme Court affirmed.

The Majority, authored by Justice Dougherty, found reasonable suspicion supported the investigative detention and upheld the recovery of the firearm. In doing so, the Court recognized the overuse of the “high‑crime area” descriptor yet retained it as a permissible contextual factor in the Terry reasonable suspicion calculus, offering several non‑mandatory guideposts for suppression courts. Justice Wecht concurred in the result (affirmance) because he concluded reasonable suspicion existed based on observed gambling conduct alone, but he sharply dissented from the Majority’s constitutional analysis. He urged the Court to abandon reliance on “high‑crime area” under Article I, Section 8 of the Pennsylvania Constitution, arguing that the label undermines the Terry doctrine’s central requirement of individualized, particularized suspicion and dilutes constitutional protections for those who live or work in targeted neighborhoods.

At stake are foundational questions about the scope of Terry stops in Pennsylvania: What qualifies as reasonable suspicion? How, if at all, may an area’s crime reputation inform that inquiry? And what limiting principles constrain trial courts when “high‑crime area” is invoked?

Summary of the Opinion

• Disposition: The Supreme Court of Pennsylvania affirmed the denial of suppression and upheld the judgment of sentence. Justice Wecht concurred in that result.
• Majority’s approach to reasonable suspicion:
  • Reaffirmed that “high‑crime area” may be considered as one contextual factor in the totality of the circumstances when assessing reasonable suspicion for a Terry stop.
  • Recognized the phrase has been overused and cautioned against mere “buzzword” reliance.
  • Suggested, but did not require, a set of guideposts suppression courts may consider to evaluate the “high‑crime area” assertion:
    • Geographic scope of the alleged high‑crime area.
    • Nexus between the type of crime for which the area is known and the suspected crime at issue.
    • The officer’s level of familiarity with the area.
    • Recency of the officer’s information about the area.
    • Empirical data known to the officer.
    • Assignment of specialized police units targeting that area.
  • Left the weight assigned to the “high‑crime area” factor to the sole discretion of suppression courts and did not mandate any factor.
  • Found reasonable suspicion existed here based on officers’ observation of a group apparently engaged in street gambling; Lewis’s flight then justified pursuit; recovery of the discarded firearm was lawful.
• Justice Wecht’s concurrence/dissent:
  • Agreed there was reasonable suspicion to stop Lewis based on the officers’ observation of apparent gambling, rendering the “high‑crime area” label unnecessary to the outcome.
  • Dissented from the constitutional analysis, criticizing “high‑crime area” as incompatible with Terry’s demand for particularized suspicion and as a vehicle for unequal, standardless policing.
  • Argued that under Article I, Section 8, the “high‑crime area” factor should be deemed irrelevant unless the officer’s prior knowledge is tied to a narrow, precise, and particular location (e.g., a specific house or vehicle), not a broad neighborhood.
  • Assessed the Majority’s guideposts as effectively toothless because they are discretionary, non‑mandatory, and subject to unreviewable trial‑court “sole discretion,” risking rubber‑stamp validation of the talismanic “high‑crime area” assertion.

Analysis

Precedents Cited and Their Influence

• Terry v. Ohio (1968): Established the limited exception to the Fourth Amendment’s probable cause rule, permitting brief investigative detentions based on reasonable suspicion. Terry requires specific, articulable facts and rational inferences, not an “inchoate and unparticularized suspicion or ‘hunch.’” It also recognized the significant dignity costs of stop‑and‑frisk and sought to cabin the exception to “brief and narrowly circumscribed intrusions.” Both the Majority and Justice Wecht root the analysis in Terry’s two pillars: reasonableness and particularization.
• United States v. Cortez (1981): Clarified that reasonable suspicion is assessed under the totality of the circumstances and must yield a “particularized and objective basis” to suspect the person stopped of criminal activity. Justice Wecht leans heavily on Cortez to emphasize that suspicion must be individualized, not broadly inferred from neighborhood characteristics.
• Illinois v. Wardlow (2000): Held that unprovoked flight in a “high‑crime area” can furnish reasonable suspicion for a Terry stop. Wardlow is the federal cornerstone for considering location’s crime reputation. Justice Wecht critiques Wardlow for diluting particularization, enabling unequal treatment across neighborhoods, and for a strained distinction between an individual’s right to “go about his business” and flight. He favors Justice Stevens’s partial dissent in Wardlow, which highlighted innocent reasons for flight and questioned the probative value of “high‑crime area.”
• Pennsylvania law aligning with Terry:
  • Commonwealth v. Hicks (Pa. 2019), Commonwealth v. Brown, Commonwealth v. Jackson: Pennsylvania has embraced Terry under Article I, Section 8, but retains its own interpretive authority.
  • Commonwealth v. Matos (Pa. 1996): Under Article I, Section 8, Pennsylvania rejects California v. Hodari D.’s federal seizure rule; a police pursuit can be a seizure, and discarded evidence during unlawful pursuit may be suppressed. This makes timing critical: reasonable suspicion must exist before the pursuit. The Majority and Justice Wecht rely on observed unlawful gambling to satisfy this timing requirement.
  • In re D.M. (Pa. 2001): After Wardlow, Pennsylvania’s high court stated that unprovoked flight in a high‑crime area can be sufficient to establish reasonable suspicion under the Fourth Amendment; the Court did not then conduct an independent Article I, Section 8 analysis to diverge from Wardlow, leaving that door open for future development. Justice Wecht urges walking through that door now.
• Other touchstones:
  • Brown v. Texas (1979), Florida v. Royer (1983), Florida v. Bostick (1991): Confirm the right to ignore police absent reasonable suspicion or probable cause; Wardlow’s attempt to reconcile flight with those principles is, in Justice Wecht’s view, unpersuasive.
  • United States v. Arvizu (2002): Reasonable suspicion can persist despite possible innocent explanations; Justice Wecht emphasizes that this is tolerable only when suspicion is grounded in individualized, articulable conduct.
  • Ybarra v. Illinois (1979): “Mere propinquity” is not enough; Justice Wecht uses Ybarra to distinguish blanket searches from focused suspicion arising from group conduct (e.g., a cohesive gambling circle).
  • State and federal critiques: The opinion canvasses jurists who question “high‑crime area,” including Chief Justice Todd and Chief Justice Baer (Pa.), Judge Strassburger (Pa. Super.), Judge Gregory (4th Cir.), Justice Dallet (Wis.), Judge Harper (Ohio), and others, reflecting a broad judicial unease with the factor’s amorphousness and disparate impact.

Legal Reasoning

1) Majority’s framework and application. The Majority acknowledges the “overuse” of “high‑crime area” but retains it as a permissible contextual factor in the Terry calculus. It proposes a set of non‑exhaustive, non‑mandatory considerations a suppression court may examine (geographic scope, crime‑type nexus, officer familiarity, temporal recency, empirical data, specialized units), while emphasizing that trial courts have “sole discretion” over the weight assigned. Applied here, the Majority determined officers possessed reasonable suspicion before pursuit based on observing a group appearing to gamble unlawfully on the sidewalk. Lewis’s subsequent flight justified pursuit; the gun discarded during lawful pursuit was admissible.

2) Justice Wecht’s concurring result, dissenting analysis. Justice Wecht endorses the outcome (reasonable suspicion existed) without relying on “high‑crime area.” He reasons that when officers see a cohesive group apparently gambling, common sense supports reasonable suspicion as to all participants in that circle, even if at a given moment not every person is visibly holding cards or money—akin to a “hot potato” where participation alternates, but all are playing. He distinguishes Ybarra’s “mere propinquity” problem because the group’s specific conduct—standing close, with money and cards visible among several—signals a collaborative activity. He also aligns the timing with Matos: reasonable suspicion was present before the chase, validating the pursuit under Pennsylvania’s stricter seizure rule.

On the constitutional question, however, Justice Wecht presses for an explicit state‑constitutional departure from Wardlow. His core points include:

• Particularization is the “central teaching” of the Fourth Amendment and Article I, Section 8. The “high‑crime area” label is not particularized to any person. If it counts, suspicion accrues to everyone within arbitrary boundaries, diluting individualized rights.
• Probabilistic logic misfires. Relying on neighborhood crime statistics to infer that a specific individual is likely engaged in crime is a weak bridge; “common sense” also tells us the vast majority of residents and visitors in any neighborhood—including those labeled “high‑crime”—are law‑abiding.
• Equality and fairness concerns. The label effectively shrinks constitutional protections for those living, working, and traveling in disfavored areas, often mapping onto socio‑economic and racial lines, creating zones of lower constitutional protection.
• Wardlow’s doctrinal tension. Wardlow’s distinction between permissible refusal to engage police and “flight” is, to Justice Wecht, hair‑splitting that undermines the right to “go about one’s business.” And Wardlow’s acceptance that Terry “may stop innocent people” downplays the real dignitary harms Terry itself recognized.
• Practical construction. He would permit officers to rely on prior knowledge only when narrowly tethered to a precise location (a specific residence, storefront, vehicle), not broad neighborhoods. This preserves individualized suspicion while still enabling resource allocation and proactive policing in areas of concern.
• Critique of the Majority’s guideposts. By making every factor optional and vesting “sole discretion” in suppression courts, the Majority’s approach risks insulating “high‑crime area” findings from meaningful appellate review. In Justice Wecht’s view, merely “saying caution” is no substitute for a controlling rule, and trial‑level magic‑word reliance may continue unabated.

Impact

Short‑term effects. Practically, Lewis preserves the status quo: “high‑crime area” remains available to the Commonwealth as a contextual factor, and trial courts retain very broad leeway to credit it with little standardized scrutiny. The Majority’s guideposts offer talking points but impose no enforceable thresholds.

Medium‑term litigation dynamics.

• For the Commonwealth:
  • Expect to proffer a more developed record when invoking “high‑crime area”: articulate geographic limits, show a crime‑type nexus, detail the officer’s familiarity and recency of knowledge, and, where possible, offer empirical data or describe targeted unit assignments.
  • When reasonable suspicion exists independent of location—e.g., observed criminal conduct (as here, gambling)—lead with those individualized facts to insure against suppression even if “high‑crime area” is questioned.
• For the Defense:
  • Challenge the foundation of the “high‑crime area” claim: demand specificity of boundaries, time frame, and data; test officer familiarity and recency; probe whether the cited crime profile matches the suspect conduct.
  • Refocus the court on individualized conduct (Cortez and Terry) and on Pennsylvania’s stricter timing rule for seizures (Matos).
  • Argue that mere presence near others or ambiguous behavior lacks particularized suspicion; use Ybarra and similar cases to counter guilt by association.

Doctrinal trajectory under Article I, Section 8. Justice Wecht’s opinion is a blueprint for a future majority willing to limit or discard “high‑crime area” as a factor in Pennsylvania. It gathers judicial and scholarly criticism and sketches a workable alternative: individualized conduct governs; general neighborhood reputation does not. Defense counsel will likely press state‑constitutional claims in future cases to invite an independent Article I, Section 8 analysis and a departure from Wardlow’s approach.

Policing and policy. Agencies can continue to allocate resources and deploy targeted units in places with more crime without relying on the high‑crime label to justify individual seizures. Training that emphasizes articulable, individualized conduct over ambient area descriptors will reduce litigation risk and align with the cautions echoed by several jurists in Pennsylvania and beyond.

Complex Concepts Simplified

• Terry stop. A brief detention by police to investigate possible criminal activity, based on “reasonable suspicion” (less than probable cause). Officers need specific, articulable facts and rational inferences—not just a hunch.
• Reasonable suspicion vs. probable cause.
  • Probable cause is required for arrests and warrants; it means there is a fair probability a crime has been or is being committed.
  • Reasonable suspicion is a lower standard allowing a brief investigative stop; it deals in probabilities and common‑sense inferences but must be particularized to the person stopped.
• “High‑crime area.” A descriptor officers sometimes invoke to contextualize suspicious behavior. Wardlow permits it as a factor alongside other facts (e.g., unprovoked flight). Critics say the label is vague, easily overused, and not tied to an individual’s conduct.
• Flight vs. “going about one’s business.” People approached by police without cause may ignore the police and leave. Wardlow treats “headlong flight” as highly suggestive of wrongdoing, especially in high‑crime areas—an approach Justice Wecht views as an analytically shaky carve‑out from the freedom to walk away.
• Seizure timing in Pennsylvania (Matos). Under Pennsylvania’s Constitution, a police pursuit can itself be a seizure. Therefore, officers must have reasonable suspicion before initiating pursuit; otherwise, items discarded during pursuit may be suppressed as fruits of an unlawful seizure.
• Particularized suspicion. A central requirement: suspicion must be directed at the individual based on their own conduct. Broad area descriptors do not satisfy this demand.

Application to the Facts

Both the Majority and Justice Wecht conclude that the officers had reasonable suspicion before the pursuit. The key fact is the officers’ observation of apparent street gambling—a specific, articulable unlawful activity under the local code—among a cohesive group standing closely together with visible money and cards in some members’ hands.

• Group conduct and individual suspicion. Justice Wecht reasons that when officers encounter a compact circle engaged in a collaborative, fast‑moving activity like sidewalk gambling, common sense supports suspicion as to all participants, even if not every person is handling cards or cash at the exact instant of observation. He analogizes to “hot potato”: participation rotates, but all are playing.
• Flight and pursuit. Once reasonable suspicion existed, Lewis’s flight permitted officers to pursue him; under Pennsylvania’s rule, the timing requirement is satisfied, and the discarded firearm is admissible.
• “High‑crime area” not necessary. On these facts, the area’s reputation neither adds nor subtracts from the individualized, conduct‑based reasonable suspicion. That is precisely Justice Wecht’s point: courts can—and should—resolve cases on individualized facts without resort to broad neighborhood labels.

Key Takeaways

• The Pennsylvania Supreme Court affirmed the denial of suppression, holding that officers had reasonable suspicion based on observed street gambling; pursuit and recovery of a discarded gun were lawful.
• The Court retained “high‑crime area” as a valid contextual factor in the Terry analysis and offered non‑mandatory guideposts for trial courts. The weight given to the factor remains within the suppression court’s “sole discretion.”
• Justice Wecht concurred in the result but urged the Court to reject reliance on “high‑crime area” under Article I, Section 8, arguing it is incompatible with the constitutional requirement of individualized, particularized suspicion and risks unequal protection.
• For litigants: build a robust, individualized record. For the Commonwealth, marshal specific observations and, if using “high‑crime area,” offer concrete, recent, and bounded support. For the defense, attack the breadth, vagueness, and recency of “high‑crime area” assertions and refocus the court on the suspect’s own conduct.
• Future cases may revisit “high‑crime area” under Pennsylvania’s Constitution. Justice Wecht’s opinion signals a readiness to depart from Wardlow’s framework when a majority is willing to do so.

Conclusion

Commonwealth v. Lewis reaffirms that conduct‑based reasonable suspicion controls the Terry analysis and that, in Pennsylvania, reasonable suspicion must exist before any pursuit. The Majority preserves “high‑crime area” as a contextual factor and supplies optional guideposts, but leaves the factor’s use and weight to trial‑court discretion. Justice Wecht’s powerful concurrence/dissent argues that the time has come—under Article I, Section 8—to abandon the “high‑crime area” crutch altogether, insisting that constitutional protections should not wax and wane with neighborhood boundaries and that suspicion must be particularized to the person.

The practical lesson for courts and litigants is straightforward: individualized facts decide cases. When officers can articulate specific observations of unlawful conduct—as they could here with street gambling—the constitutional analysis is clean. When the case turns on the “magic words” of a “high‑crime area,” the analysis becomes murky, risks unequal application, and invites future state‑constitutional correction. Lewis leaves that deeper correction for another day, but Justice Wecht’s opinion charts the path.