2020 IL App (1st) 172687-U

No. 1-17-2687 

September 9, 2020 

Third Division

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as 

precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). 

______________________________________________________________________________ 

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

______________________________________________________________________________ 

THE PEOPLE OF THE STATE OF ILLINOIS,

Plaintiff-Appellee, 

 v. 

TRAVILLE SMITH, 

Defendant-Appellant. 

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Appeal from the

Circuit Court of 

Cook County. 

No. 15 CR 10490 

Honorable 

Kevin M. Sheehan, 

Judge Presiding. 

PRESIDING JUSTICE HOWSE delivered the judgment of the court. 

Justices McBride and Ellis concurred in the judgment. 

ORDER

¶ 1 Held: Defendant’s trial counsel was not ineffective for failing to file a motion to quash 

arrest and suppress evidence where the arresting officers had probable cause to 

arrest defendant. 

¶ 2 Following a jury trial, defendant Traville Smith was convicted of armed habitual criminal 

(720 ILCS 5/24-1.7(a) (West 2014)) and sentenced to 10 years’ imprisonment. On appeal, 

defendant argues his trial counsel was ineffective for failing to file a motion to quash arrest and 

suppress evidence where the police officers arrested defendant based solely on his possession of a 
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firearm, without probable cause or reasonable suspicion that his possession of the weapon was 

unlawful, and they improperly used their unauthorized seizure of defendant to extract a statement 

from him and discover his criminal history to prove he committed a crime. We affirm. 

¶ 3 Defendant was charged with one count of armed habitual criminal, two counts of unlawful 

use or possession of a weapon by a felon, and four counts of aggravated unlawful use of a weapon

arising from his possession of a firearm on June 19, 2015. The State proceeded only on the armed 

habitual criminal count. 

¶ 4 At trial, Chicago police officer Kent Elmer testified that on June 19, 2015, he was assigned 

to a tactical team, “assigned a certain area of the district that has a recent spike in violence or 

narcotic sales.” He was in civilian dress, wearing a police vest, insignia, name tag, and duty belt 

with police-issued equipment, and driving an unmarked squad car while on routine patrol in that

area with his partner Chicago police officer Steve Barsch. On the 5400 block of South Laflin Street 

in Chicago, at approximately 11:18 a.m., he observed a group of six people “loitering” in front of 

a vacant building near a parked car. Elmer identified defendant in court as one of the people he 

saw. 

¶ 5 Elmer saw defendant standing near the driver’s side rear door of the car, and noticed 

defendant was “securing” a “bulge” in the front of his waistband while leaning into an open 

window in the car. In his eight years as a police officer, Elmer had seen people reach toward their 

waistband and “manipulate” an item. Seeing defendant do this caused Elmer “alarm.” At that point, 

the officers decided, “due to the totality of the circumstances,” to exit their vehicle and conduct a 

field interview. “Immediately” upon the officers exiting the vehicle, approximately 10 feet away
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from the group, defendant “grabbed” the bulge in his waistband and fled on foot. Elmer then 

announced his office and pursued defendant on foot while Barsch pursued by car. 

¶ 6 Running behind defendant, Elmer saw one of defendant’s hands clutching the front 

waistband area of his body as he was running. He followed defendant to Garfield Boulevard and 

then to the 5400 block of Bishop Street, where he saw defendant remove a black handgun from

the front of his body with the hand which had been clutching that area and throw the gun to the 

ground. From approximately 15 feet away, nothing obstructed Elmer’s view and he heard the gun 

make a “clunk” sound when it fell on the grass. Elmer recovered the gun within approximately 

three seconds of seeing defendant drop it and continued pursuing defendant. Defendant then ran 

through the alleys behind Bishop Street, and a gangway westbound between two houses before he 

emerged onto Bishop Street once more and fell to the ground. When defendant fell, Elmer

“detained” him. Elmer “ordered him on his stomach” until Barsch arrived with the vehicle. The 

officers handcuffed defendant and placed him into custody. 

¶ 7 The handgun Elmer recovered was “a Lorcin arms nine-millimeter black semi-automatic” 

loaded with 14 bullets, including one in the chamber. The gun remained in Elmer’s constant care, 

custody, and control until he reached the police station. Elmer identified the gun and ammunition 

he recovered in court. 

¶ 8 After the officers placed defendant in custody, they transported him to the police station, 

where the defendant “related to [them] that [they] caught him and that he refuses to be a victim.” 

Barsch inventoried the gun and placed it in the inventory cabinet. The gun and ammunition were 

entered into evidence. 
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¶ 9 On cross-examination, Elmer stated he recognized the group of people due to his “driving 

down that street before” but did not know any of their residential addresses. It was possible that 

one or more of those people could have lived on that block. After Elmer pursued defendant on 

foot, he did not see Barsch in the vehicle until he had already detained defendant. Elmer stated 

that, while he observed defendant drop the handgun in an open field which was next to a house, 

he wrote in his incident report that he observed defendant drop a gun in a gangway, which to him 

meant the side of a house. Elmer acknowledged that he did not have gloves on when he picked up 

the gun although he had been trained in how to process crime scenes and preserve evidence. 

Elmer’s vehicle was not equipped with a dashboard camera, nor was he equipped with a body 

camera. Elmer stated “[i]t is routine” to question defendants regarding potential medical 

conditions, but he did not recall defendant’s responses. 

¶ 10 On redirect examination, Elmer testified that he never lost sight of defendant from when 

he first saw him to detaining him. Elmer did not wait to pick up the gun until he had gloves because 

he was the only officer present and he had “to weigh leaving the crime scene or retrieving the 

handgun without gloves.” 

¶ 11 On recross examination, Elmer stated, at the time he retrieved the handgun, he did not 

know whether it was loaded, the safety was on, or if it was functioning correctly. He picked it up 

by the barrel and kept running with it. When Elmer detained defendant, he ordered him to turn 

around “on his belly” and, after defendant complied, Elmer placed a knee on his back, waiting for 

his partner to arrive, who then placed defendant in handcuffs. 

¶ 12 Chicago police sergeant Steve Barsch testified he was working with Elmer as part of the 

tactical team on June 19, 2015. They were dressed in jeans and t-shirts, wearing their vests with 
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stars and name tags, as well as their duty belts, driving in an unmarked police car on the 5400 

block of South Laflin Street. Around 11:18 that morning, they saw a group of people, including 

defendant, “hanging out” in front of an abandoned building. When the officers got closer, Barsch 

saw defendant move his hand to his waistband and “manipulat[e] a bulge in his front while moving 

towards [a] parked car.” Barsch indicated this to the court by placing his right hand by his 

waistband. 

¶ 13 Barsch and Elmer decided to stop their vehicle when they were approximately 10 to 15 feet 

away from defendant. As they exited the vehicle, defendant fled on foot, running south. Elmer 

gave chase on foot while Barsch moved to the driver’s seat and followed in the vehicle. 

Approximately one block away from where he first saw defendant, Barsch saw Elmer holding a 

knee to defendant’s back. Elmer was holding a gun in his hand by the barrel or frame, so Barsch 

knew it was not Elmer’s weapon. When Barsch pulled over, he assisted Elmer in handcuffing 

defendant, and they transported him to the police station. Barsch read defendant his Miranda

rights, and defendant stated he understood. Defendant then stated something to the effect of “he 

had it” and he “did not want to be a victim” and “y’all got me.” Defendant’s statement was not 

recorded. Barsch inventoried the firearm he received from Elmer, which he identified in court. 

¶ 14 On cross-examination, Barsch acknowledged he did not know who owned the building in 

front of which the people had been gathered. The squad car Elmer and Barsch were using had “M 

[license] plates” which designated it as a municipal vehicle. He and Elmer had exited their vehicle 

but not approached the group yet when defendant immediately fled on foot. Everyone else in the 

group did not also flee. Barsch stated that he never saw defendant holding a gun and did not recall 

what defendant or any of the other people with defendant had been wearing that day. On redirect 
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examination, Barsch testified he was not paying attention to the other people who were present in 

front of the building as his only focus was on defendant at the time, but he did not recall the other 

people “taking off.” 

¶ 15 The parties stipulated that defendant had previously been convicted of two qualifying 

felony offenses. The court denied defendant’s motion for a directed verdict. 

¶ 16 Defendant testified he had prior convictions for possession of a controlled substance and 

unlawful use of a weapon. On June 19, 2015, at approximately 11:00 a.m., he was in the 5400 

block of South Laflin Street in Chicago walking with two other people to a gas station. Defendant 

did not have a firearm. Police officers arrived in a car and, when they got out of the car, defendant 

ran away because he “was on parole and so was the guy [he] was with, which is illegal.” Defendant 

clarified that the reason he ran was because he believed he was in violation of his parole. At the 

time, defendant had a medical condition, inguinal hernia, which caused him pain while running, 

so he was holding his “scrotum area” rather than his waistband. Inguinal hernia makes the scrotum 

appear “inflated,” which defendant described as “it kind of looked like I had, like, a softball in my 

pants.” This hernia had been treated since defendant was arrested.

¶ 17 Defendant ran a block away to a vacant lot where a police officer chased him. Defendant 

did not drop a gun in the vacant lot. Defendant was about five or six houses ahead of the police 

officer, but the officer caught up with him because defendant was in “too much pain,” had to stop 

running, and fell down. At that point, the officers arrested defendant, putting him in handcuffs and

placing him in a car. Defendant never possessed or saw a gun at any point that day. At the station, 

defendant never made any statement to police officers.
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¶ 18 On cross-examination, defendant stated his scrotum was enlarged “pretty close” to his 

waist on June 15, 2015, and was about the size of a grapefruit. Defendant did not run between 

houses, but ran through several vacant lots, until he was arrested. When defendant was transported 

to the police station, the police officers never read him his Miranda rights and never asked him his 

version of events. At the station, the officers who had arrested him asked him what was in his pants 

“because it was so large.” He told them he had an inflated hernia. They never offered to take him 

to the hospital. Defendant stated when he had given up running, Elmer caught up to him and told 

him to get on the ground. Elmer put his knee on top of defendant but had nothing in his hands at 

the time. The officers found a gun after his arrest, but defendant never had it. 

¶ 19 Officer Barsch testified in rebuttal that he read defendant his Miranda rights, after which 

defendant made a statement at the police station. Defendant never complained of any medical 

conditions and never told Barsch he had a hernia. Nor did Barsch observe defendant to have a 

“bulging testicle that came up near his waist region.” Had defendant complained of any medical 

issues, Barsch would have called EMS or brought him to the emergency room. Defendant was 

never taken for any sort of treatment, although he was given the opportunity to express any medical 

concerns. 

¶ 20 The jury found defendant guilty of armed habitual criminal. The court denied defendant’s 

motion and supplemental motion for a new trial and sentenced defendant to 10 years’ 

imprisonment. 

¶ 21 On appeal, defendant argues this court should reverse his conviction outright or remand for 

further proceedings because his trial counsel was ineffective for failing to move to quash 

defendant’s arrest and suppress his subsequent statement to Officers Elmer and Barsch and the 
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criminal history gathered after his arrest, where the officers arrested him without probable cause 

or even reasonable suspicion to believe that his possession of the gun was unlawful. 

¶ 22 As an initial matter, the State argues this court “may wish” to decline review of this issue 

which may be better suited for postconviction review where a more complete record could be 

developed. Because counsel did not file a motion to quash arrest and suppress evidence, the court 

held no hearing regarding whether the evidence showed the officers had probable cause to arrest 

defendant. Further, at trial the State was only concerned with proving that defendant committed 

the charged offense, not with establishing a factual basis demonstrating the officers’ probable 

cause to arrest. See People v. Burnett, 2019 IL App (1st) 163018, ¶ 13-14 (noting the circumstances 

of the case did not permit the court to meaningfully review the defendant’s claim of ineffective 

assistance of counsel for failure to file motion to quash arrest); People v. Evans, 2015 IL App (1st) 

130991, ¶ 34 (concluding the record in the case was devoid of factual findings relevant to the 

appropriateness of the police officers’ actions surrounding defendant’s arrest and, therefore, 

declining to consider the defendant’s claim of ineffective assistance of counsel in failing to file a 

motion to suppress evidence). 

¶ 23 As our Supreme Court stated in People v. Veach, 2017 IL 120649, ¶ 46, “ineffective 

assistance of counsel claims may sometimes be better suited to collateral proceedings but only 

when the record is incomplete or inadequate for resolving the claim.” Veach, 2017 IL 120649, ¶ 

46. Thus, we must “carefully consider each ineffective assistance of counsel claim on a case-bycase basis” (Id., ¶ 48) “to determine whether the circumstances permit us to adequately address a 

defendant’s ineffective assistance of counsel claim on direct review.” Burnett, 2019 IL App (1st) 

163018, ¶ 13. In this case, we find the evidence presented at trial is sufficient for analyzing the 
No. 1-17-2687 

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question of whether the police officers had probable cause to arrest defendant. Officer Elmer in 

particular testified regarding defendant’s flight and viewing defendant throw a gun away, which 

comprised the basis for the charge against him. Although testimony regarding the officer’s 

suspicions would have been presented at a suppression hearing, much of the testimony at trial was 

of the same type as at a potential suppression hearing (see People v. Henderson, 2013 IL 114040, 

¶ 22), and we view the record as adequately developed for this court to address defendant’s claims 

without the need for speculation. Accordingly, we turn to the merits. 

¶ 24 Defendant contends the police illegally arrested him based solely upon his flight and 

“manipulation” of his waistband without probable cause to believe a crime was being committed. 

He argues a motion to quash his arrest and suppress the evidence gathered as a result of his illegal 

arrest would therefore have been successful and, without that evidence, the State could not prove 

he was guilty. He argues counsel therefore was ineffective for not filing a motion to quash arrest 

and suppress evidence. The State responds the police officers had probable cause for defendant’s 

arrest where defendant discarded a firearm during his flight, so any motion to quash arrest and 

suppress evidence would have been unsuccessful. 

¶ 25 We review ineffective assistance of counsel claims using the two-part test set forth in 

Strickland v. Washington, 466 U.S. 668 (1984). People v. Manning, 241 Ill. 2d 319, 326 (2011). 

To establish a claim of ineffective assistance of counsel, a defendant must demonstrate both that 

(1) counsel’s performance was objectively unreasonable under prevailing professional norms and 

(2) the deficient performance prejudiced defendant. Veach, 2017 IL 120649, ¶ 30. A defendant 

must satisfy both prongs of the Strickland test to raise a successful claim for ineffective assistance 

of counsel. Id. If a reviewing court finds defendant suffered no prejudice from counsel’s acts or 
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omissions, it need not determine whether counsel’s performance was objectively unreasonable 

under the first prong of the test. People v. Ceja, 204 Ill. 2d 332, 358 (2003). We review ineffective 

assistance of counsel claims de novo. People v. Demus, 2016 IL App (1st) 140420, ¶ 21. 

¶ 26 Trial counsel’s decision regarding whether to file a motion to quash arrest and suppress 

evidence is generally a matter of trial strategy, which is afforded great deference. People v. Spann, 

332 Ill. App. 3d 425, 432 (2002). Trial counsel “enjoys the strong presumption that failure to 

challenge the validity of the defendant’s arrest or to move to exclude evidence was proper.” Id. In 

order to overcome that presumption and establish prejudice, defendant must show the unargued 

suppression motion is meritorious, and that a reasonable probability exists that the trial’s outcome 

would have been different had the evidence be suppressed. Henderson, 2013 IL 114040, ¶ 15. 

Accordingly, in order to find defendant received ineffective assistance of counsel for his trial 

counsel’s failure to file a motion to quash arrest and suppress evidence, defendant must show the 

motion would have been granted. 

¶ 27 We find defendant has not met this burden. Under the fourth amendment to the United 

States Constitution, people have the right to be secure against unreasonable searches and seizures. 

U.S. Const., amend. IV. Further, “[i]t is well settled that not every encounter between the police 

and a private citizen results in a seizure.” People v. Luedemann, 222 Ill. 2d 530, 544 (2006). Courts 

have thus divided encounters between citizens and police into three categories: (1) arrests, which 

must be supported by probable cause; (2) Terry stops, which must be supported by reasonable, 

articulable suspicion of criminal activity; and (3) encounters that involve no coercion or detention 

and do not implicate fourth amendment concerns. Id. 

¶ 28 Defendant here challenges his arrest, which occurred when he complied with Elmer’s order 
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to lie on his stomach, where Elmo held him until defendant was handcuffed. Probable cause to 

arrest exists when “the facts known to the officer at the time of the arrest are sufficient to lead a 

reasonably cautious person to believe the arrestee has committed a crime,” under the totality of the 

circumstances at the time of the arrest. People v. Wear, 229 Ill. 2d 545, 563-64 (2008). “The 

standard for determining whether probable cause is present is probability of criminal activity, 

rather than showing proof beyond a reasonable doubt.” Id. at 564. 

¶ 29 Defendant argues that the police officers illegally seized him based on his flight and

manipulation of a “bulge” in his waistband before deciding to interview defendant. He asserts they 

lacked reasonable, articulable suspicion to initiate a Terry stop, let alone probable cause to arrest 

him. He further argues even if Elmer believed defendant had a gun at his waist, this is not 

presumptively illegal as is lawful under the second amendment to possess a gun in Illinois. See 

People v. Aguilar, 2013 IL 112116, ¶ 21. Defendant argues that, in light of Aguilar, a police officer 

merely viewing a person’s possession of a gun does not provide probable cause to arrest that 

person. 

¶ 30 As defendant notes, his ultimate seizure took place when, after he fell on the ground after 

running from Elmer, he obeyed Elmer’s order to lay on his stomach and stayed there until he was 

handcuffed, thereby submitting to the police officers’ authority. See People v. Thomas, 198 Ill. 2d 

103, 111-112 (2001). We do not agree that the officers had no probable cause to arrest defendant, 

as the officers’ decision to arrest was based on more than seeing a suspicious bulge on defendant’s 

person. 

¶ 31 Elmer testified he and Barsch were assigned to an area with a recent spike in violence or 

narcotic-related crimes. Due to his eight years’ experience as a police officer, defendant’s 
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manipulation of a bulge at his waist caused Elmer “alarm,” leading the officers to decide to conduct 

a field interview under the totality of the circumstances. As soon as they exited their vehicle, before 

they even began to approach defendant, he ran off, circling the block in ostensibly evasive 

maneuvers, clutching the front waistband area of his body while Elmer pursued him on foot. 

“[U]nprovoked flight on seeing police in an area known for crime is suggestive of wrongdoing and 

may justify police suspecting that individual of criminal activity, which warrants further 

investigation.” Thomas, 2019 IL App (1st) 170474, ¶ 19 (citing Illinois v. Wardlow, 528 U.S. 119, 

124-25 (2000)). The fact that defendant’s flight from police is susceptible to an innocent 

explanation, here that he thought associating with another parolee violated his own parole, does 

not vitiate the officers’ right to detain the individual to resolve any ambiguity. Id. 

¶ 32 Then, during defendant’s flight, Elmer witnessed defendant remove a handgun from his 

waistband and drop it to the ground. Disposal of a handgun is a fact which can contribute to finding

probable cause that defendant illegally possessed the handgun. Thomas, 2019 IL App (1st) 170474, 

¶¶ 38-39 (holding the defendant’s flight from police officers and handoff of a handgun to another 

person were facts taken in totality that “gave police probable cause to believe at the very least” the

defendant illegally possessed the handgun). 

¶ 33 Defendant is correct that, under Aguilar, the right to bear arms extends beyond the home. 

Aguilar, 2013 IL 112116, ¶ 20. However, that right is “subject to meaningful regulation.” Id., ¶ 

21. Under that meaningful regulation, in order to possess a handgun, a person must carry a FOID 

card issued in his name by state police (430 ILCS 65/2 (West 2014)). Thomas, 2019 IL App (1st) 

170474, ¶ 36. Further, under the Concealed Carry Act (430 ILCS 66/10 (West 2014)), an individual 

may carry a concealed firearm on his person provided he has a valid FOID card. Id., ¶ 37. A 
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“concealed firearm” means a firearm “carried on or about a person completely or mostly concealed 

from the view of the public.” 430 ILCS 66/5 (2014). Here, defendant openly took out his firearm, 

threw it away, and continued running. Not only did his openly wielding his gun violate the 

Concealed Carry Act (Thomas, 2019 IL App (1st) 170474, ¶ 39), he attempted to get rid of the gun 

as he was fleeing from police. These facts gave police probable cause to believe, at the very least, 

that defendant illegally possessed the gun, i.e. that there was a probability that defendant did not 

have the necessary gun licenses and that he violated the Concealed Carry Act if he did. See id., ¶¶ 

38-39. 

¶ 34 Given Aguilar and the licensing acts, “police cannot simply assume a person who possesses 

a firearm outside the home is involved in criminal activity. Id., ¶ 40. However, the totality of the 

circumstances here indicates more than mere gun possession. Taken together, Elmer’s police 

experience, defendant’s immediate unprovoked flight upon seeing police officers in an area with

a recent spike in violence or narcotic-related crimes, and public display and then disposal of a 

firearm would lead a reasonably cautious person to believe defendant was committing or had 

committed a crime, thereby establishing probable cause to arrest him. See id., ¶¶ 37-40. 

¶ 35 Because the evidence shows police officers had probable cause to arrest defendant under 

the totality of the circumstances, any motion to quash arrest and suppress evidence would not have 

been successful. See People v. Grant, 2013 IL 112734, ¶ 23. Therefore, defendant did not suffer 

prejudice from his trial counsel’s failure to file a motion to quash arrest and suppress evidence,

and we find his trial counsel was not ineffective for failing to file the motion. See Ceja, 204 Ill. 2d 

at 358. Further, because we find defendant’s counsel was not ineffective for failing to file the 
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motion, we need not address defendant’s argument that counsel was ineffective in failing to move 

to suppress defendant’s criminal history and statement. 

¶ 36 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County. 

¶ 37 Affirmed.