Commonwealth v. Coles, E., Aplt.

[J-66-2025]

IN THE SUPREME COURT OF PENNSYLVANIA

EASTERN DISTRICT

COMMONWEALTH OF PENNSYLVANIA, : No. 3 EAP 2025

:

Appellee : Appeal from the Order of the

: Superior Court at No. 980 EDA

: 2023 entered on June 7, 2024,

v. : reversing and remanding the Order

: of the Philadelphia County Court of

: Common Pleas at No. CP-51-CR-

ELISE COLES, : 0008713-2021, entered on March

: 17, 2023.

Appellant :

: ARGUED: September 10, 2025

DISSENTING STATEMENT

JUSTICE WECHT

The Majority dismisses this appeal as “improvidently granted.” Nothing about this

case warrants such a summary dismissal. We should resolve the question upon which

we granted review. The bench and bar, and all Pennsylvanians, would benefit from a

precedential opinion from this Court.

We granted allowance of appeal in order to answer the following question:

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?1

The question arose from the following circumstances. On the evening of September 24,

2020, Philadelphia Police Officer Ryan Struble was sitting in a marked police vehicle. He

observed three people, one of whom was Elise Coles, sitting outside near a street corner.

Darkness had fallen; visibility was low. Nonetheless, Officer Struble was able to see one

1 Commonwealth v. Coles, 332 A.3d 1185 (Pa. 2025) (per curiam).

of the individuals holding a smoking, brown cigar. The officer also detected the odor of

burnt marijuana. Officer Struble and his partner approached the trio in order to

investigate. Coles—who was wearing a backpack—saw the officers exit their marked

vehicle, and she fled into a nearby residence. Accompanied by three other uniformed

officers, Officer Struble pursued Coles, forced entry into the residence, and detained

Coles in the living room. Coles was no longer wearing the backpack. Officers found it in

the kitchen. A police officer felt and patted the backpack, and suspected that it contained

a firearm. The officer confirmed this suspicion by opening the backpack. Coles did not

have a license to carry the firearm. The officer arrested Coles for violating the Uniform

Firearms Act.2

Coles filed a pretrial motion to suppress the firearm, arguing that the officers’ entry

into the residence and their subsequent search of her backpack violated her rights under

the United States and Pennsylvania Constitutions.3 The Commonwealth responded that,

because Coles had abandoned her backpack in a residence in which she had no lawful

right to be, she relinquished any reasonable expectation of privacy that she might have

had in the backpack.

Evaluating the totality of the circumstances, the trial court concluded that the

officers had reasonable suspicion to justify pursuing Coles in order to investigate the

potential use of marijuana on the street corner.4 The trial court concluded, however, that

the totality of the circumstances did not demonstrate that Coles intended to abandon her

2 18 Pa.C.S. §§ 6106(a), 6108.

3 See U.S. CONST. amend. IV and PA. CONST. art I, § 8.

4 Tr. Ct. Op., 8/25/2023, at 5.

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backpack or to forfeit her expectation of privacy therein.5 The trial court ruled that the

search of the backpack exceeded any search permitted by Terry v. Ohio.6 In the trial

court’s view, Coles maintained a reasonable expectation of privacy in the backpack

throughout the entire encounter, and the search of the backpack was unrelated to any

criminal activity suspected at the street corner. The trial court granted Coles’ motion, and

it suppressed the gun found in the backpack.

The Superior Court reversed. It opined that the record did not support the trial

court’s conclusion that Coles did not abandon the backpack.7 The court first held that

police officers had reasonable suspicion to justify pursuing Coles into the residence in

order to continue their investigation of the apparent use of marijuana on the street corner.

Because Coles abandoned the backpack in a house that she had no right to enter, and

because the abandonment was not coerced by unlawful police conduct, the court held, “it

logically follows that [Coles] did not have a reasonable expectation of privacy in the

backpack and its contents[.]”8 The court concluded that the officers needed neither

reasonable suspicion nor probable cause to search the abandoned backpack.

5 Id. The trial court identified several circumstances that undermined the

Commonwealth’s theory of abandonment: No officer saw Coles discard the backpack;

the backpack was not left in a trashcan or other disposal receptable; the backpack was

left in the residence of an acquaintance; and Coles later returned to the police station to

retrieve earbuds from within the backpack.

6 392 U.S. 1, 30 (1968) (requiring “reasonable grounds to believe that” an individual

“was armed and dangerous” to justify frisking that individual). The trial court reasoned

that, under Terry, the police officer must have had reasonable suspicion that Coles was

a danger to the officer in order to search the backpack.

7 Commonwealth v. Coles, 317 A.3d 659 (Pa. Super. 2024).

8 Id. at 664.

[J-66-2025, 3 EAP 2025] - 3

Evidence seized in violation of Article I, Section 8 of the Pennsylvania Constitution

must be suppressed.9 In order to demonstrate such a constitutional violation, Coles would

first have to demonstrate a legitimate expectation of privacy in the backpack. This

required Coles to “(1) have exhibited a subjective expectation of privacy and (2) have

demonstrated that the expectation is one that society is prepared to recognize as

reasonable and legitimate.”10 An expectation of privacy does not extend to property that

a defendant has voluntarily abandoned or relinquished.11 If Coles had abandoned the

backpack, as the Commonwealth asserted, that act would have obviated the need for law

enforcement to establish cause to search it.12

Police pursuit of an individual is a “seizure” under Article I, Section 8 of the

Pennsylvania Constitution.13 Like any seizure, police pursuit must be founded upon

reasonable suspicion to detain or upon probable cause to arrest.14 Were we to decide

the issue presented to us on this appeal, we would resolve whether the police officers

had reasonable suspicion to detain Coles when she ran away at the officers’ approach.

Consequently, the threshold issue in evaluating Coles’ motion to suppress was whether

9 Commonwealth v. Gordon, 683 A.2d 253, 256 (Pa. 1996).

10 Id.

11 Id.

12 Evidence nonetheless will be inadmissible if the defendant is forced to abandon

property due to compulsion or coercive actions by law enforcement. Commonwealth v.

Matos, 672 A.2d 769, 771 (Pa. 1996).

13 Id. at 776. Matos is premised upon Article I, Section 8 of the Pennsylvania

Constitution, and represents a departure from Fourth Amendment precedent. The Court

declined to adopt the narrower definition of seizure embraced by the Supreme Court of

the United States in California v. Hodari D., 499 U.S. 621 (1991), in which that Court held

that a person is not seized until he or she submits to a police officer’s show of authority

or are physically apprehended. Matos, 672 A.2d at 776.

14 Commonwealth v. Cook, 735 A.2d 673, 675 (Pa. 1999).

[J-66-2025, 3 EAP 2025] - 4

the pursuit preceding abandonment was lawful. If the pursuit was premised upon

reasonable suspicion or probable cause, it was lawful, and Coles’ abandonment of the

backpack was not unlawfully coerced. However, if it was not premised upon reasonable

suspicion or probable cause, then the pursuit was unlawful, the abandonment of the

backpack was coerced, and the gun found in the backpack has to be suppressed.

In the landmark case of Terry, the United States Supreme Court decided whether

a police officer’s stop-and-frisk on less than probable cause was constitutionally

reasonable. The Court held that it was. Two conditions must be satisfied in order to

validate a so-called Terry stop:

First, the investigatory stop must be lawful. That requirement is met in an

on-the-street encounter, Terry determined, when the police officer

reasonably suspects that the person apprehended is committing or has

committed a criminal offense. Second, to proceed from a stop to a frisk, the

police officer must reasonably suspect that the person stopped is armed

and dangerous.15

A stop, or temporary seizure, is permitted under Terry and its progeny when the

police officer “observes unusual conduct which leads him reasonably to conclude in light

of his experience that criminal activity may be afoot.”16 In determining whether

reasonable suspicion exists, we consider the totality of the circumstances.17 We follow

Terry in stop and frisk cases, even when a party’s arguments are premised upon Article

I, Section 8 of the Pennsylvania Constitution.18 Were we deciding the issue before us,

this would be the framework for our analysis.

15 Arizona v. Johnson, 555 U.S. 323, 326-27 (2009).

16 Terry, 392 U.S. at 30.

17 In re D.M., 781 A.2d 1161, 1163 (Pa. 2001).

18 Id. at 1163.

[J-66-2025, 3 EAP 2025] - 5

Our resolution of this appeal should distill to whether, under the totality of the

circumstances, the police officers had individualized reasonable suspicion that Coles was

involved in criminal activity when Coles fled from the street corner upon the officers’

approach and officers gave chase. Here, where the police officer observed a marijuana

cloud above a group of several people, there was no lack of evidence to believe that

someone in the group had committed a crime. The question in this case is whether

evidence that someone in a group has committed a crime justifies the seizure of the entire

group or a particular person in that group, or whether police officers must have more

individualized suspicion. On the one hand, when they cannot single out one particular

person as a suspect, police officers may be able to freeze the situation while they

investigate in order to confirm or dispel their suspicion. On the other hand, it is well-

established that police officers must reasonably believe that a particular suspect was

“engaged or had engaged in criminal conduct.”19 Under the totality of the circumstances,

it may also be relevant that Coles fled upon the police officers’ approach. Although flight

may indicate consciousness of guilt, flight alone is insufficient to justify seizure, as it

establishes neither probable cause nor reasonable suspicion.20

At this juncture, and at our direction, the parties have diligently expended their time

and resources to brief this issue and to present oral argument. That issue, having been

briefed and argued, it now is ready to be resolved. We should decide the issue before

us. No compelling reason exists, and this Court identifies none in its order, that warrants

abandoning this case at such a late stage, particularly when the result would clarify an

important area of law. I dissent from the Court’s decision to dismiss the appeal as

improvidently granted.

19 Brown v. Texas, 443 U.S. 47, 53 (1979).

20 Commonwealth v. Jeffries, 311 A.2d 914, 917 (Pa. 1973).

[J-66-2025, 3 EAP 2025] - 6