No Precedent Set: Justice Wecht’s Dissent Urges Individualized Suspicion for Flight Plus Proximity to Marijuana Under Article I, Section 8

Introduction

In Commonwealth v. Coles, E., Aplt., the Supreme Court of Pennsylvania dismissed the appeal as improvidently granted (a “DIG”), leaving unresolved a sharply framed constitutional question under Article I, Section 8 of the Pennsylvania Constitution: whether police may detain a person who flees upon officers’ approach when the only other factor is that person’s mere proximity to another individual smoking marijuana. Justice Wecht filed a dissenting statement arguing that the Court should have decided the issue, which has significant implications for everyday policing and suppression litigation throughout the Commonwealth.

The case arises from a late-evening encounter on a Philadelphia street corner. An officer observed a trio of people (including appellant, Elise Coles), detected the odor of burnt marijuana, and saw one individual holding a smoking, brown cigar. When officers approached, Coles, wearing a backpack, fled into a nearby residence. Officers forced entry, detained her, found the backpack in the kitchen, patted it, suspected it contained a firearm, opened it, and recovered a gun. Coles lacked a license to carry and was arrested for firearm offenses under the Uniform Firearms Act (18 Pa.C.S. §§ 6106(a), 6108).

The trial court granted Coles’s suppression motion; the Superior Court reversed, concluding that Coles abandoned the backpack and thus lacked a reasonable expectation of privacy in it. The Supreme Court granted review to decide whether flight plus mere proximity to someone smoking marijuana suffices for reasonable suspicion under Article I, Section 8—but then DIG’d. Justice Wecht’s dissent explains the doctrinal stakes and why the Court should have spoken.

Summary of the Opinion (Dissent)

The majority issued no opinion on the merits; it dismissed the appeal as improvidently granted. Justice Wecht dissented, urging the Court to resolve the question it had accepted for review:

Consistent with the requirement of individualized suspicion imposed by Article I, Section 8 of the Pennsylvania constitution, may police detain someone for running from police when the only other factor is their mere proximity to a person smoking marijuana?

The dissent frames the suppression analysis around two interlocking inquiries:

Whether police had individualized reasonable suspicion to pursue and seize Coles when she fled upon approach, given only her proximity to apparent marijuana use; and
Whether Coles’s subsequent abandonment of the backpack was voluntary (and thus extinguished any privacy interest) or was coerced by an unlawful pursuit (rendering the evidence suppressible).

Relying on Pennsylvania’s distinctive seizure doctrine under Article I, Section 8—where police pursuit itself is a “seizure”—the dissent emphasizes that flight alone is insufficient to justify seizure and that suspicion must be individualized to the person seized, not merely to a group. Because the parties fully briefed and argued the issue, Justice Wecht would have decided it, rather than dismissing the appeal.

Factual and Procedural Background

Facts

September 24, 2020, after dark, Philadelphia police in a marked vehicle observe three people on a street corner, including Coles.
An officer sees one person holding a smoking, brown cigar and detects the odor of burnt marijuana.
As officers approach, Coles—wearing a backpack—runs into a nearby residence. Officers pursue with additional uniformed officers, force entry, and detain Coles. The backpack is no longer on her person; it is found in the kitchen.
An officer pats the backpack, suspects a firearm, opens it, and finds a gun. Coles has no license to carry and is arrested for UFA violations (18 Pa.C.S. §§ 6106(a), 6108).

Trial Court

Granted suppression of the firearm.
Found reasonable suspicion existed to investigate marijuana use but concluded Coles did not abandon the backpack and retained a reasonable expectation of privacy in it.
Held the backpack search exceeded Terry v. Ohio because the frisk/search was not justified by reasonable suspicion that Coles was armed and dangerous as to that container and was unrelated to suspected marijuana use.
Noted facts undermining abandonment: no officer observed discard; backpack not placed in trash; left in acquaintance’s residence; Coles later returned to retrieve earbuds from it.

Superior Court

Reversed and remanded.
Concluded officers had reasonable suspicion to pursue Coles to continue the marijuana investigation.
Held that leaving the backpack in a house Coles had no right to enter constituted abandonment not coerced by unlawful police conduct, negating her reasonable expectation of privacy and the need for reasonable suspicion or probable cause to search the backpack.

Supreme Court

Granted allocatur to decide whether flight plus proximity to a person smoking marijuana suffices for detention under Article I, Section 8.
Dismissed as improvidently granted.
Justice Wecht dissented, urging resolution of the question and emphasizing the need for a precedential opinion.

Analysis

Precedents Cited and Their Role

Commonwealth v. Matos, 672 A.2d 769 (Pa. 1996)

Holding: Under Article I, Section 8, police “pursuit” of an individual is a seizure—departing from the federal rule in California v. Hodari D., 499 U.S. 621 (1991), which requires submission or physical force.
Relevance: If pursuit is a seizure, it must be justified at inception by reasonable suspicion (or probable cause), or else any ensuing “abandonment” is coerced and cannot justify a search.

California v. Hodari D., 499 U.S. 621 (1991)

Federal benchmark: No seizure until submission to authority or physical apprehension.
PA divergence: Matos rejects Hodari D. under the state constitution, affording broader protection in Pennsylvania.

Terry v. Ohio, 392 U.S. 1 (1968) and Arizona v. Johnson, 555 U.S. 323 (2009)

Terry permits a brief investigatory stop on reasonable suspicion that a person “is committing or has committed a criminal offense.”
To frisk, an officer must additionally have reasonable suspicion that the person is “armed and dangerous.”
Johnson succinctly restates Terry’s two-step framework.
Relevance: The dissent emphasizes these thresholds and that Pennsylvania follows Terry in stop-and-frisk analysis even under Article I, Section 8 (In re D.M., 781 A.2d 1161 (Pa. 2001)).

Brown v. Texas, 443 U.S. 47 (1979)

Key principle: Officers must reasonably suspect that a particular person “was engaged or had engaged in criminal conduct.”
Relevance: Supports the dissent’s focus on “individualized suspicion” rather than group-based or collective suspicion.

Commonwealth v. Jeffries, 311 A.2d 914 (Pa. 1973)

Holding: Flight alone does not establish either probable cause or reasonable suspicion.
Relevance: Although flight may be a factor suggesting consciousness of guilt, it cannot alone justify a seizure; hence, the need for additional individualized facts.

Commonwealth v. Cook, 735 A.2d 673 (Pa. 1999)

Reiterates that pursuit, as a seizure in Pennsylvania, must be supported by reasonable suspicion to detain or probable cause to arrest.
Relevance: Frames the lawfulness of the pursuit as a threshold issue that determines whether subsequent abandonment is voluntary.

Commonwealth v. Gordon, 683 A.2d 253 (Pa. 1996)

Expectation of privacy requires a subjective expectation that society recognizes as reasonable; voluntary abandonment eliminates that expectation.
Relevance: If the backpack was abandoned voluntarily, Coles lacked a protectable privacy interest. But if the abandonment was coerced by unlawful pursuit, suppression follows.

In re D.M., 781 A.2d 1161 (Pa. 2001)

Confirms Pennsylvania’s adherence to Terry’s reasonable suspicion framework in stop-and-frisk cases, even under Article I, Section 8.

Legal Reasoning in the Dissent

The dissent structures the suppression analysis around the legality of the initial seizure (the pursuit) and the downstream validity of the backpack search:

Was the pursuit of Coles supported by individualized reasonable suspicion that Coles, as opposed to someone in her group, had committed or was committing a crime?
- The officer observed marijuana smoke around a trio but did not identify the smoker with sufficient clarity; visibility was low, and the cigar was observed in “one of the individuals'” hands.
- Coles’s flight may contribute to suspicion but cannot alone justify a seizure (Jeffries). The question is whether flight plus mere proximity to suspected marijuana use suffices.
- Under Brown v. Texas, suspicion must be particularized to the person seized; group suspicion is not enough.
If the pursuit lacked reasonable suspicion, any abandonment of the backpack was coerced and cannot justify a search (Matos; Gordon).
- Because pursuit is itself a seizure in Pennsylvania, the causation between an unlawful seizure and abandonment is direct; suppression is required.
If the pursuit was lawful, did Coles in fact abandon the backpack, extinguishing her privacy interest?
- The trial court found no abandonment (backpack left in acquaintance’s residence; not discarded; later retrieval attempt), while the Superior Court found abandonment, highlighting Coles’s lack of lawful right to be in the residence and lack of coercion.
Independently, did the search exceed Terry limits?
- The trial court concluded that patting and opening a backpack required reasonable suspicion that Coles was armed and dangerous in a way that justified a protective frisk—and that this search was unrelated to the suspected marijuana offense.
- The Superior Court avoided this question by finding abandonment, which mooted the need for suspicion or probable cause to open the backpack.

Synthesizing these points, the dissent would decide—rather than dismiss—whether flight plus proximity to marijuana use satisfies Pennsylvania’s individualized reasonable suspicion requirement. That decision, in turn, would determine whether the pursuit was lawful, whether abandonment was voluntary, and whether the gun must be suppressed.

Impact and What the DIG Leaves in Place

Because the Court DIG’d, no new statewide precedent was created. The Superior Court’s decision reversing suppression remains operative in this case. The broader legal landscape therefore remains governed by:

Matos: pursuit equals seizure under Article I, Section 8;
Jeffries: flight alone is insufficient;
Brown v. Texas and Terry/Johnson: reasonable suspicion must be individualized and grounded in the totality of the circumstances;
Gordon: voluntary abandonment defeats an expectation of privacy, but coerced abandonment does not.

The practical consequences:

Persistent uncertainty for the bench and bar about whether “flight plus mere proximity to suspected marijuana use” constitutes reasonable suspicion to detain a specific individual in a group.
Continued case-by-case litigation over when group-related observations (e.g., smoke or odor among several people) can be “particularized” to justify a seizure of one member, especially when that person flees.
Suppression outcomes will continue to hinge on trial courts’ nuanced findings about the clarity of officers’ observations, whether suspicion attached to a specific person, and the voluntariness of any abandonment following pursuit.

Had the Court reached the merits in line with the dissent’s framing, it likely would have provided much-needed guidance on:

How to treat “collective suspicion” in groups versus the demand for individualized suspicion under Article I, Section 8;
The role of flight as an additive factor and the quantum of additional facts needed to particularize suspicion;
The interplay between the lawfulness of a pursuit-seizure and downstream abandonment of effects.

Related Legal Context (Beyond the Dissent’s Citations)

While not cited in the dissent, Pennsylvania courts have also grappled with the evidentiary significance of marijuana odor and use. For example, in Commonwealth v. Barr, 266 A.3d 25 (Pa. 2021), the Supreme Court held that the odor of marijuana, by itself, does not establish probable cause to search a vehicle, although it remains a relevant factor among others. This evolving context underscores why, in scenarios involving cannabis odor or visible smoke, courts increasingly examine whether officers can particularize suspicion to a specific person, consistent with Brown and Terry principles—especially when presence is shared among several individuals.

Complex Concepts Simplified

Improvidently Granted (DIG): The appellate court decides not to reach the merits of a case it previously agreed to hear, typically without explanation. The lower court’s decision remains in effect, and no new statewide precedent is created.
Article I, Section 8 vs. Fourth Amendment: Pennsylvania’s constitutional search-and-seizure provision can provide greater protections than the federal Fourth Amendment. Matos is a prime example: pursuit is a seizure in Pennsylvania even if it is not under federal law.
Seizure via Pursuit (Matos): In Pennsylvania, the moment officers give chase, a seizure has occurred and must be justified by reasonable suspicion or probable cause.
Reasonable Suspicion: A particularized, articulable belief based on the totality of the circumstances that a specific person is involved in criminal activity. It is more than a hunch but less than probable cause.
Individualized (Particularized) Suspicion: The requirement that suspicion be tied to the person seized, not merely to a group or a location. Proximity to wrongdoing, without more, generally does not suffice.
Flight: Evasive behavior that may be relevant to suspicion but, by itself, does not create reasonable suspicion or probable cause in Pennsylvania.
Terry Stop and Frisk: A stop requires reasonable suspicion of criminal activity; a frisk requires additional reasonable suspicion that the person is armed and dangerous. Container searches are not automatically permitted under Terry and often require separate justification.
Abandonment: A person forfeits a reasonable expectation of privacy in property they voluntarily relinquish. If abandonment is induced by an unlawful seizure (e.g., an unjustified pursuit), it is considered coerced and does not justify a search.

Unresolved Questions Highlighted by the Dissent

Does flight plus mere proximity to suspected marijuana use generate individualized reasonable suspicion to seize a specific person in a group?
When officers cannot single out the suspect in a group, may they “freeze” all members briefly under Terry to particularize suspicion, and if so, under what constraints?
How does the lawfulness of pursuit (as a seizure) affect the voluntariness of subsequent abandonment of effects?
What limits apply to patting and opening containers like backpacks under Terry when the container is separated from the suspect or the suspected crime is unrelated to weapons?
What exigency, if any, justifies forced entry into a residence during a pursuit that begins as an investigative stop rather than an arrest? (The dissent does not reach this point, but the facts foreground it for future cases.)

Conclusion

Commonwealth v. Coles arrives at a pivotal moment for Pennsylvania search-and-seizure law, where the practical realities of on-street policing intersect with robust state constitutional protections. The Supreme Court’s dismissal leaves intact the Superior Court’s abandonment analysis in this case but provides no clarifying precedent on the critical question the Court originally agreed to decide: whether officers may detain a person for flight when the only other factor is mere proximity to marijuana use.

Justice Wecht’s dissent persuasively frames the doctrinal path forward: In Pennsylvania, pursuit is a seizure and must be supported by individualized reasonable suspicion; flight alone is insufficient; and if pursuit is unlawful, abandonment is coerced and cannot validate a search. By declining to address these issues, the Court leaves bench and bar to navigate with existing, but piecemeal, signposts—Matos, Jeffries, Brown, Terry, Gordon—until a suitable case secures a merits decision. The key takeaway is a cautionary one: absent specific, articulable facts that tie suspected criminal activity to a particular person, group-based observations plus flight will remain a precarious foundation for seizure and for the admissibility of any resulting evidence under Article I, Section 8.