Monthly Archives: May 2007

Police May Search Person Following Arrest for Petty DP – State v. Daniels

In this morning’s Appellate Division decision in State v. Daniels, the court ruled that police may conduct a full search of the person as incident to an arrest for a criminal charge, even if the arrest is for a petty disorderly persons’ offense. The case also contains excellent review of the authority police maintain under New Jersey law to conduct field inquiries, investigative detentions and arrests.

Download a copy of State v. Daniels.

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Traffic Stop Detention of 26 Minutes Was Reasonable – State v. Baum

New Jersey courts have yet to establish a precise amount of detention time that will convert a routine traffic stop into a de facto arrest. As a general rule, the longer a law enforcement traffic stop continues, the more likely the courts will be to regard the investigative detention as an arrest. In today’s decision in State v. Baum, the Appellate Division found that an investigative, roadside detention of 26 minutes was reasonable, given that the delay was attributed to the false stories of the driver and passenger as well as some small measure of delay attributable to the police. Note when reading the decision that the court quotes precisely what the police and defendants said to each other at the scene of the motor vehicle stop. This evidence, (as well as the precise time of the investigative detention) was obviously taken from a video recording of the stop, and was a crucial factor in the State’s ability to persuade the Appellate Division to reverse the Law Division holding at the trial level.

Download a copy of State v. Baum.

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Supreme Court to Review Crawford v. Washington Issues & Procedures

On May 16th, the New Jersey Supreme Court certified 4 cases for review, each of which deals with distinct substantive and procedural issues related to the United State Supreme Court’s decision in Crawford v. Washington, 541 U.S. 36 (2004). This will be the first time the Justices have had the opportunity to discuss the impact of Crawford in detail in a New Jersey case. Apart from the cases under review, the Court’s decisions may also affect at least two additional “Crawford” decisions by the Appellate Division, State v. Renshaw, 390 N.J. Super 456 (App. Div. 2007) (defendant may confront person who drew blood sample in DWI case) and State v. Kent, 391 N.J. Super. 352 (App. Div. 2007) (failure by defendant to request confrontation of person who drew blood sample or tested the sample in a DWI prosecution constitutes waiver). The cases that will be reviewed are the following:

C-1207-05 State v. William G. Sweet
Supreme Court Docket No. 59,661
Order Filed May 16, 2007
Appellate Division Decision Filed May 4, 2006

This unpublished decision is a case where the Crawford issue related to the admissibility of Breath Test Instrument Inspection Certificates in a DWI prosecution. These documents have been held to be non-testimonial within the meaning of Crawford by the Law Division in State v, Godshalk, 381 N.J. Super. 326 (Law Div. 2005) and by the Appellate Division earlier this month in State v. Dorman, ___ N.J. Super. ___ (App. Div. 2007).

C-55-06 State of New Jersey in the Interest of J.A.
Supreme Court Docket No. 59,684
Order Filed May 16, 2007
App. Div. Reported at 385 N.J. Super. 544 (2006)

This case relates to statements given to the police in a rapidly unfolding investigation. The statements were deemed to be non-testimonial.

C-85-06 State of New Jersey v. Richard F. Berezansky
Supreme Court Docket No. 59,857
Order Filed May 16, 2007
App. Div. reported at 386 N.J. Super. 84 (2006)

The Court ruled that blood test result certificates in a DWI prosecution were testimonial within the meaning of Crawford.

C-793-06 State v. Ryan Buda
C-794-06 Supreme Court Docket No. 60,611
Order Filed May 16, 2007

App. Div. Reported at 389 N.J. Super. 241 (2006)

This decision held that statements made by a small child to a DYFS investigator were testimonial within the meaning of Crawford.

No date has been set for argument; although it is likely the cases will be argued and decided together.

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No “Forefeiture by Wrongdoing” Rule in New Jersey – State v. Byrd

The Federal Rules of Evidence provide a hearsay exception which will admit in evidence the statement of a non-testifying witness who has been threatened by a defendant. This Rule is known as “Forfeiture by Wrongdoing” and it will even supersede the confrontation clause protections discussed by the Supreme Court in Crawford v. Washington. However, in this morning’s Appellate Division decision in State v. Byrd, the Court ruled that New Jersey has no comparable hearsay exception in our Rules of Evidence. Accordingly, admission of such a hearsay statement at trial deprived the defendants of their confrontation rights and entitled them to a new trial.

Download a copy of State v. Byrd.

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Naked Detention During Search Warrant Upheld – County of L.A. v. Rettele

This morning’s decision by the United States Supreme Court in County of Los Angeles v. Rettele stands for the proposition that the decision by police to detain people found at the scene during the execution of a search warrant is categorical, yet must be reasonable. In the instant case, the removal of two innocent and naked people from bed and their brief detention by the police was deemed by the Court to be reasonable.

Per Curiam


on petition for writ of certiorari to the united states court of appeals for the ninth circuit

Decided May 21, 2007 No. 06–605.

Per Curiam.

Deputies of the Los Angeles County Sheriff’s Department obtained a valid warrant to search a house, but they were unaware that the suspects being sought had moved out three months earlier. When the deputies searched the house, they found in a bedroom two residents who were of a different race than the suspects. The deputies ordered these innocent residents, who had been sleeping unclothed, out of bed. The deputies required them to stand for a few minutes before allowing them to dress.

The residents brought suit under Rev. Stat. §1979, 42 U. S. C. §1983, naming the deputies and other parties and accusing them of violating the Fourth Amendment right to be free from unreasonable searches and seizures. The District Court granted summary judgment to all named defendants. The Court of Appeals for the Ninth Circuit reversed, concluding both that the deputies violated the Fourth Amendment and that they were not entitled to qualified immunity because a reasonable deputy would have stopped the search upon discovering that respondents were of a different race than the suspects and because a reasonable deputy would not have ordered respondents from their bed. We grant the petition for certiorari and reverse the judgment of the Court of Appeals by this summary disposition.


From September to December 2001, Los Angeles County Sheriff’s Department Deputy Dennis Watters investigated a fraud and identity-theft crime ring. There were four suspects of the investigation. One had registered a 9-millimeter Glock handgun. The four suspects were known to be African-Americans.

On December 11, Watters obtained a search warrant for two houses in Lancaster, California, where he believed he could find the suspects. The warrant authorized him to search the homes and three of the suspects for documents and computer files. In support of the search warrant an affidavit cited various sources showing the suspects resided at respondents’ home. The sources included Department of Motor Vehicles reports, mailing address listings, an outstanding warrant, and an Internet telephone directory. In this Court respondents do not dispute the validity of the warrant or the means by which it was obtained.

What Watters did not know was that one of the houses (the first to be searched) had been sold in September to a Max Rettele. He had purchased the home and moved into it three months earlier with his girlfriend Judy Sadler and Sadler’s 17-year-old son Chase Hall. All three, respondents here, are Caucasians.

On the morning of December 19, Watters briefed six other deputies in preparation for the search of the houses. Watters informed them they would be searching for three African-American suspects, one of whom owned a registered handgun. The possibility a suspect would be armed caused the deputies concern for their own safety. Watters had not obtained special permission for a night search, so he could not execute the warrant until 7 a.m. See Cal. Penal Code Ann. §1533 (West 2000). Around 7:15 Watters and six other deputies knocked on the door and announced their presence. Chase Hall answered. The deputies entered the house after ordering Hall to lie face down on the ground.

The deputies’ announcement awoke Rettele and Sadler. The deputies entered their bedroom with guns drawn and ordered them to get out of their bed and to show their hands. They protested that they were not wearing clothes. Rettele stood up and attempted to put on a pair of sweatpants, but deputies told him not to move. Sadler also stood up and attempted, without success, to cover herself with a sheet. Rettele and Sadler were held at gunpoint for one to two minutes before Rettele was allowed to retrieve a robe for Sadler. He was then permitted to dress. Rettele and Sadler left the bedroom within three to four minutes to sit on the couch in the living room.

By that time the deputies realized they had made a mistake. They apologized to Rettele and Sadler, thanked them for not becoming upset, and left within five minutes. They proceeded to the other house the warrant authorized them to search, where they found three suspects. Those suspects were arrested and convicted.

Rettele and Sadler, individually and as guardians ad litem for Hall, filed this §1983 suit against Los Angeles County, the Los Angeles County Sheriff’s Department, Deputy Watters, and other members of the sheriff’s department. Respondents alleged petitioners violated their Fourth Amendment rights by obtaining a warrant in reckless fashion and conducting an unreasonable search and detention. The District Court held that the warrant was obtained by proper procedures and the search was reasonable. It concluded in the alternative that any Fourth Amendment rights the deputies violated were not clearly established and that, as a result, the deputies were entitled to qualified immunity.

On appeal respondents did not challenge the validity of the warrant; they did argue that the deputies had conducted the search in an unreasonable manner. A divided panel of the Court of Appeals for the Ninth Circuit reversed in an unpublished opinion. 186Fed. Appx. 765 (2006). The majority held that

“because (1) no African-Americans lived in [respondents’] home; (2) [respondents], a Caucasian couple, purchased the residence several months before the search and the deputies did not conduct an ownership inquiry; (3) the African-American suspects were not accused of a crime that required an emergency search; and (4) [respondents] were ordered out of bed naked and held at gunpoint while the deputies searched their bedroom for the suspects and a gun, we find that a reasonable jury could conclude that the search and detention were ‘unnecessarily painful, degrading, or prolonged,’ and involved ‘an undue invasion of privacy,’ Franklin v. Foxworth, 31 F. 3d 873, 876 (9th Cir. 1994).” Id., at 766.

Turning to whether respondents’ Fourth Amendment rights were clearly established, the majority held that a reasonable deputy should have known the search and detention were unlawful.

Judge Cowen dissented. In his view the deputies had authority to detain respondents for the duration of the search and were justified in ordering respondents from their bed because weapons could have been concealed under the bedcovers. He also concluded that, assuming a constitutional violation, the law was not clearly established.

The Court of Appeals denied rehearing and rehearing en banc.


Because respondents were of a different race than the suspects the deputies were seeking, the Court of Appeals held that “[a]fter taking one look at [respondents], the deputies should have realized that [respondents] were not the subjects of the search warrant and did not pose a threat to the deputies’ safety.” Ibid. We need not pause long in rejecting this unsound proposition. When the deputies ordered respondents from their bed, they had no way of knowing whether the African-American suspects were elsewhere in the house. The presence of some Caucasians in the residence did not eliminate the possibility that the suspects lived there as well. As the deputies stated in their affidavits, it is not uncommon in our society for people of different races to live together. Just as people of different races live and work together, so too might they engage in joint criminal activity. The deputies, who were searching a house where they believed a suspect might be armed, possessed authority to secure the premises before deciding whether to continue with the search.

In Michigan v. Summers, 452 U. S. 692 (1981) , this Court held that officers executing a search warrant for contraband may “detain the occupants of the premises while a proper search is conducted.” Id., at 705. In weighing whether the search in Summers was reasonable the Court first found that “detention represents only an incremental intrusion on personal liberty when the search of a home has been authorized by a valid warrant.” Id., at 703. Against that interest, it balanced “preventing flight in the event that incriminating evidence is found”; “minimizing the risk of harm to the officers”; and facilitating “the orderly completion of the search.” Id., at 702–703; see Muehler v. Mena, 544 U. S. 93 (2005) .

In executing a search warrant officers may take reasonable action to secure the premises and to ensure their own safety and the efficacy of the search. Id., at 98–100; see also id., at 103 (Kennedy, J., concurring); Summers, supra, at 704–705. The test of reasonableness under the Fourth Amendment is an objective one. Graham v. Connor, 490 U. S. 386, 397 (1989) (addressing the reasonableness of a seizure of the person). Unreasonable actions include the use of excessive force or restraints that cause unnecessary pain or are imposed for a prolonged and unnecessary period of time. Mena, supra, at 100; Graham, supra, at 396–399.

The orders by the police to the occupants, in the context of this lawful search, were permissible, and perhaps necessary, to protect the safety of the deputies. Blankets and bedding can conceal a weapon, and one of the suspects was known to own a firearm, factors which underscore this point. The Constitution does not require an officer to ignore the possibility that an armed suspect may sleep with a weapon within reach. The reports are replete with accounts of suspects sleeping close to weapons. See United States v. Enslin, 327 F. 3d 788, 791 (CA9 2003) (“When [the suspect] put his hands in the air and began to sit up, his movement shifted the covers and the marshals could see a gun in the bed next to him”); see also United States v. Jones, 336 F. 3d 245, 248 (CA3 2003) (suspect kept a 9-millimeter Luger under his pillow while he slept); United States v. Hightower, 96 F. 3d 211 (CA7 1996) (suspect kept a loaded five-shot handgun under his pillow); State v. Willis, 36,759–KA, p. 3 (La. App. 4/9/03), 843 So. 2d 592, 595 (officers “pulled back the bed covers and found a .38 caliber Model 10 Smith and Wesson revolver located near where defendant’s left hand had been”); State v. Kypreos, 115 Wash. App. 207, 61 P. 3d 352 (2002) (suspect kept a handgun in the bed).

The deputies needed a moment to secure the room and ensure that other persons were not close by or did not present a danger. Deputies were not required to turn their backs to allow Rettele and Sadler to retrieve clothing or to cover themselves with the sheets. Rather, “[t]he risk of harm to both the police and the occupants is minimized if the officers routinely exercise unquestioned command of the situation.” Summers, 452 , at 702–703.

This is not to say, of course, that the deputies were free to force Rettele and Sadler to remain motionless and standing for any longer than necessary. We have recognized that “special circumstances, or possibly a prolonged detention” might render a search unreasonable. See id., at 705, n. 21. There is no accusation that the detention here was prolonged. The deputies left the home less than 15 minutes after arriving. The detention was shorter and less restrictive than the 2- to 3-hour handcuff detention upheld in Mena. See 544 , at 100. And there is no allegation that the deputies prevented Sadler and Rettele from dressing longer than necessary to protect their safety. Sadler was unclothed for no more than two minutes, and Rettele for only slightly more time than that. Sadler testified that once the police were satisfied that no immediate threat was presented, “they wanted us to get dressed and they were pressing us really fast to hurry up and get some clothes on.” Deposition of Judy Lorraine Sadler in No. CV–0206262–RSWL (RNBX) (CD Cal., June 10, 2003), Doc. 26, Exh. 4, p. 55.

The Fourth Amendment allows warrants to issue on probable cause, a standard well short of absolute certainty. Valid warrants will issue to search the innocent, and people like Rettele and Sadler unfortunately bear the cost. Officers executing search warrants on occasion enter a house when residents are engaged in private activity; and the resulting frustration, embarrassment, and humiliation may be real, as was true here. When officers execute a valid warrant and act in a reasonable manner to protect themselves from harm, however, the Fourth Amendment is not violated.

As respondents’ constitutional rights were not violated, “there is no necessity for further inquiries concerning qualified immunity.” Saucier v. Katz, 533 U. S. 194, 201 (2001) . The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

Justice Souter would deny the petition for a writ of certiorari.

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Public Safety Exception to Miranda – State v. O’Neal

Among the many important legal issues discussed by the New Jersey Supreme Court in this morning’s decision in State v. O’Neal, two stand out. First, the justices explain that probable cause to arrest is the triggering event for a search incident to an arrest. Accordingly, once the police have developed probable cause to effect an arrest, they may lawfully search the person for weapons and evidence before formally placing the suspect under arrest.

The second issues relates to the public safety exception to the Miranda warnings. As previously developed by the United States Supreme Court, police may ask questions of an arrested person relating to the immediate recovery of dangerous weapons at an arrest scene. The New Jersey Supreme Court, for the first time, issued guidelines in the O’Neal case relating to the types of questions the police may ask in these limited public safety situations when there is an objectively reasonable need to protect the police and public from the immediate danger posed by a weapon.

Download a copy of State v. O’Neal.

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Police May Do Protective a Sweep without Making an Arrest – State v. Lane

In today’s Appellate Division decision in State v. Lane, the Court ruled that New Jersey police may conduct protective sweeps when they have a reasonable suspicion that the area to be swept poses a danger. Those protective sweeps are not predicated upon the police effecting an arrest. Moreover, the area to be searched by the police may include the interior of a residence or another building or the outside area (i.e. adjacent lands to the residence known in the law as curtilage) surrounding the residence.

Download a copy of County of State v. Lane

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Breath Test Certificates not Testimonial under Crawford – State v. Dorman

On Friday, the Appellate Division held in State v. Dorman that breath test instrument inspection certificates (BTIIC) are admissible in evidence as business records under NJURE 803(c)(6) and are not testimonial in nature, as defined in Crawford v. Washington, 41 U.S. 36 (2004) for confrontation clause purposes.

The Court reasoned in its holding that, unlike blood test result certificates from the State Police Labs which are prepared for use in a single, identifiable prosecution, breath test instrument inspection certificates are not created for use in any particular case and are typical business records.(It should be noted that they are often created weeks or months before the defendant has been arrested for drunk driving.)

The Appellate Division’s holding in Dorman approves, in general terms, a Law Division case from Camden County that reached the same conclusion on a Crawford objection to the admissibility of the BTIIC See State v. Godshalk, 381 N.J. Super. 386 (Law Div. 2005).

Download a copy of State v. Dorman.

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ACJC Files Ethics Complaint Against Justice Rivera-Soto

The presenter for the Advisory Committee on Judicial Conduct (ACJC) filed a complaint today with the Supreme Court charging Justice Rivera-Soto with various violations of the Canons of Judicial Conduct (Canons 1, 2A, and 2B) as well as Rule 2:15-8. Justice Rivera-Soto will now have an opportunity to file an answer and have the allegations considered by the full committee. If the ACJC finds that there is sufficient evidence to support the charges in the complaint, it will return a formal presentment. In that event, final discipline will be decided by the remaining six justices of the Supreme Court.

The New Jersey Supreme Court has long maintained it possesses a constitutional grant of authority to impose discipline on sitting judges. (See In re Mattera, 34 N.J. 259 (1961). However, to date, no case has construed the authority the court has to impose discipline on one of its own sitting members. In two previous cases where discipline was imposed by the court on a sitting justice (cases involving the late Chief Justice Wilentz and former Associate Justice Robert Clifford) the justice who was the subject of the disciplinary action consented to the jurisdiction of the Supreme Court for the purpose of the disciplinary.

The basis of the allegations in the complaint relate to the use of the prestige of the judicial office in a family dispute related to Justice Rivera-Soto’s son. The allegations, although serious, do not come anywhere close to the level of egregious misconduct that resulted in the removal of two judges who used their judicial position to influence similar type disputes involving family members. (See In re Yacavino, 100 N.J. 50 (1985) (Superior Court judge removed from judicial office) and In re Samay, 166 N.J. 25 (2001) (municipal court judge removed from judicial office and subsequently suspended from the practice of law for 3 years; In re Samay 175 N.J. 438 (2003).)

Download a copy of the complaint.

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Prior Refusal Enhances Subsequent Conviction – State v. Breslin

This morning’s Appellate Division decision in State v. Breslin resolves a legal issue related to sentencing in refusal cases. Historically, the majority of refusal cases in New Jersey that have resulted in convictions were decided in an era when the burden of proof in such cases was statutorily set at the civil standard of proof by preponderance of the evidence. Subsequently, in State v. Cummings, 184 N.J. 84 (2005) the Supreme Court “judicially amended” the statute to require proof beyond a reasonable doubt as a matter of constitutional law. The argument raised in Breslin is whether a prior conviction that was decided under the “civil standard of proof” can be used to enhance the sentence for a subsequent refusal conviction that was decided under the “proof beyond a reasonable doubt” standard. The court ruled that such a sentencing enhancement was perfectly appropriate and required by New Jersey law.

Download a copy of State v. Breslin

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Officer’s Testimony Alone Sufficient to Prove Speed Zone – State v. Morgan

Yesterday’s Appellate Division holding in State v. Morgan stands for the proposition that the sworn testimony of a police officer can be sufficient evidence to prove the authorized speed on a roadway during a speeding prosecution. The Appellate Division also expressed its concern about continuing the validity of N.J.S.A. 39:5-31, the statute which permits a judge to revoke a driver’s license for a willful violation of Subtitle 1 of Title 39. However, the panel declined to rule on the merits of this issue due to mootness.

Download a copy of State v. Morgan.

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Chun case temporarily Remanded to Judge King

By order dated April 30th, the Supreme Court has remanded the Chun case back to Judge King, the Special Master. The Court’s remand order follows:

A-96 September Term 2006






The Court having previously certified the within matter directly pursuant to Rule 2:12-1 and having contemporaneously appointed retired Appellate Division Presiding Judge Michael
Patrick King as Special Master,

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And the Special Master having conducted hearings and, on February 13, 2007, submitted his written Findings and Conclusions (the February 13, 2007 Report), And the Court having heard argument on the matter on April 5, 2007,

And good cause appearing,

IT IS ORDERED that, the matter is temporarily remanded to the Special Master for the limited purpose of providing defendants the opportunity to conduct, at defendants’ expense,
an analysis of the software referred to as Firmware versions 3.8 and 3.11 used in the Alcotest 7110 to the extent that these Firmware versions were utilized by law enforcement personnel in
New Jersey for the purpose of any matter subject to this Court’s January 10, 2006 Order, which analysis is to be limited to determining whether Firmware versions 3.8 and 3.11 reliably
analyze, record and report alcohol breath test results; and it is further

ORDERED that, within seven (7) days of the date of this order, defendants shall notify intervenor Draeger Safety Diagnostics, Inc. (DSDI) and the Special Master of the identity of an independent software house that defendants propose to retain for the purpose of conducting source code testing and, in the event that defendants determine that there are no matters subject to this Court’s January 10, 2006 Order in which Firmware

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3.8 was utilized, they shall notify DSDI that source code testing of that Firmware version is not needed; and it is further

ORDERED that, in the event that defendants do not identify an independent software house for the purposes set forth in this limited remand, then the Special Master shall immediately notify the Court in writing and that failure shall be deemed to be an election to forgo source code testing other than that which has been agreed upon in Addendum A at pages 236-41 of the Special Master’s Report; and it is further

ORDERED that, if the independent software house identified by defendants is acceptable to DSDI, then DSDI shall, within seven (7) days, provide the source codes for Firmware versions
3.8 and 3.11, as appropriate, to that independent software house for the purpose of conducting that analysis, which shall be in accordance with the methodology previously agreed upon by defendants and DSDI, as set forth in Addendum A; and it is further

ORDERED that, in the event that the independent software house identified by defendants is not acceptable to DSDI, then it shall within five (5) days advise defendants and the Special Master of the identity of the independent software house of its choosing, following which, if the parties cannot agree, the Special Master shall, within seven (7) days, designate the

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independent software house for the purpose of this limited remand; and it is further

ORDERED that, the independent software house shall provide its expert report to the parties, DSDI and the Special Master within ninety (90) days of its receipt of the source codes; and
it is further

ORDERED that, the Special Master shall consider the expert’s report and, within fourteen (14) days of his receipt of the expert’s report, shall advise this Court, by supplemental findings and conclusions, in respect of the effect, if any, of the expert’s report on the findings and conclusions contained in his February 13, 2007 Report.

WITNESS, the Honorable James R. Zazzali, Chief Justice, at Trenton, this 30th day of April, 2007.

/s/ Stephen W. Townsend
Clerk of the Supreme Court
LaVECCHIA, ALBIN, WALLACE, RIVERA-SOTO and HOENS join in the Court’s Order.

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