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Thread: Visible bow and arrow in national park justifies search of entire car, including trunk

  1. #1
    Regular Member Repeater's Avatar
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    This is yet another opinion from the Fourth Circuit where Judge Wilkinson helps the government at the expense of liberty.

    Scotty Lee Carico tells the police during a traffic stop that he has a handgun. The handgun is plainly visible, which the court oddly refers to as an "unauthorized weapon" - why would it say that? Here's what the court says:


    It is undisputed that Carico was stopped by law enforcement because an unauthorized weapon was visible in his vehicle. The officer was therefore permitted to perform a protective search of the vehicle to secure the weapon.

    A law enforcement officer may conduct a protective search of the passenger compartment of a lawfully stopped automobile where the “officer possesses a reasonable belief based on ‘specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant’ the officer in believing that [a] suspect is dangerous and the suspect may gain immediate control of weapons” within the vehicle. Michigan v. Long, 463 U.S. 1032, 1049-50 (1983) (quoting Terry v. Ohio, 392 U.S. 1, 21 (1968)).

    It is undisputed that Carico was stopped by law enforcement because an unauthorized weapon was visible in his vehicle. The officer was therefore permitted to perform a protective search of the vehicle to secure the weapon. United States v. Elston, 479 F.3d 314, 320 (4th Cir. 2007) (search of vehicle in Terry stop authorized if officer has reasonable belief that suspect is dangerous and may gain control of weapons in vehicle, even if suspect is restrained at the time). Moreover, Carico’s disclosure that there was a firearm on the front passenger seat further highlighted the danger Carico posed to the officer. Thus, the initial search of the vehicle for weapons was proper.

    Carico additionally argues that the officer did not have probable cause to perform a more thorough search of the vehicle, including its trunk. However, it is well established that, “‘If a car is readily mobile and probable cause exists to believe it contains contraband,’” an officer may search the car without a warrant. “If probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search.”

    The law enforcement officer found multiple weapons and a large quantity of cash during his initial search of the vehicle. Under these circumstances, there was more than a fair probability that either controlled substances or other weapons were present. Considering the nature of the suspected contraband, the scope of the officer’s search was appropriate.
    The court does not define "multiple weapons" or "large quantity of cash" but the implications for Virginians and elsewhere in the Fourt Circuit are scary.

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    Regular Member richarcm's Avatar
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    So can't that same logic be used against OCers? What's the difference?

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    Repeater wrote:
    This is yet another opinion from the Fourth Circuit where Judge Wilkinson helps the government at the expense of liberty.

    Scotty Lee Carico tells the police during a traffic stop that he has a handgun. The handgun is plainly visible, which the court oddly refers to as an "unauthorized weapon" - why would it say that? Here's what the court says:


    It is undisputed that Carico was stopped by law enforcement because an unauthorized weapon was visible in his vehicle. The officer was therefore permitted to perform a protective search of the vehicle to secure the weapon.

    A law enforcement officer may conduct a protective search of the passenger compartment of a lawfully stopped automobile where the “officer possesses a reasonable belief based on ‘specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant’ the officer in believing that [a] suspect is dangerous and the suspect may gain immediate control of weapons” within the vehicle. Michigan v. Long, 463 U.S. 1032, 1049-50 (1983) (quoting Terry v. Ohio, 392 U.S. 1, 21 (1968)).

    It is undisputed that Carico was stopped by law enforcement because an unauthorized weapon was visible in his vehicle. The officer was therefore permitted to perform a protective search of the vehicle to secure the weapon. United States v. Elston, 479 F.3d 314, 320 (4th Cir. 2007) (search of vehicle in Terry stop authorized if officer has reasonable belief that suspect is dangerous and may gain control of weapons in vehicle, even if suspect is restrained at the time). Moreover, Carico’s disclosure that there was a firearm on the front passenger seat further highlighted the danger Carico posed to the officer. Thus, the initial search of the vehicle for weapons was proper.

    Carico additionally argues that the officer did not have probable cause to perform a more thorough search of the vehicle, including its trunk. However, it is well established that, “‘If a car is readily mobile and probable cause exists to believe it contains contraband,’” an officer may search the car without a warrant. “If probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search.”

    The law enforcement officer found multiple weapons and a large quantity of cash during his initial search of the vehicle. Under these circumstances, there was more than a fair probability that either controlled substances or other weapons were present. Considering the nature of the suspected contraband, the scope of the officer’s search was appropriate.
    The court does not define "multiple weapons" or "large quantity of cash" but the implications for Virginians and elsewhere in the Fourt Circuit are scary.
    It is undisputed that Carico was stopped by law enforcement because an unauthorized weapon was visible in his vehicle. The officer was therefore permitted to perform a protective search of the vehicle to secure the weapon.

    So what exactly constituted an "unauthorized weapon"? Did the officer in question know that the inidividual was a felon not authorized to possess a firearm? How did the officer know the weapon was unauthorized? What was the purpose for the traffic stop?

    So taken from reading the opinion--for the purposes of a traffic stop when you are not considered in "custody" does that mean you are just free to leave any traffic stop at any time you choose?

    Answer NO questions, refuse to say anything. Refuse any consent to search, and just keep your mouth shut and call your lawyer.

    I always thought that you were being detained/in custody when any reasonable person in the same or similar circumstances would believe that he/she was not free to simply leave.

    I am glad that I don't live in the 4th Circuit.


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    Wow...I read and reread the linked pdf. It's full of circular logic and contains opinions already stated unlawful by SCOPUS...unless there is more that we don't know. The court could also be using reference information specific to the case that we aren't aware of from simply reading the opinion.

    Suntzu hit one of my issues with it. We don't know about the person's status. It might be that the officer already knew the person being detained as a felon, which means he was already unlawfully carrying a firearm. That violation in of itself would provide the officer with the authority to search the car.

    The Miranda and voluntary statement portions are right on.

    However, a law enforcement officer may conduct a protective search of the passenger compartment of a lawfully stopped 3 automobile where the “officer possesses a reasonable belief based on ‘specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant’ the officer in believing that [a] suspect is dangerous and the suspect may gain immediate control of weapons” within the vehicle. Michigan v. Long, 463 U.S. 1032, 1049-50 (1983) (quoting Terry v. Ohio, 392 U.S. 1, 21 (1968)).
    Again, I'd say only valid if the officer knew at the very beginning that he was a felon or some other reason to know in advance that the detained person is "unauthorized" to carry the gun. Maybe the officer received a tip that the person was carrying/selling drugs thereby satisfying RAS? If he isn't a felon or there isn't some other reason, then carrying a gun, which is completely legal in VA, was already ruled by SCOPUS to not be a valid reason for a terry stop/detention nor a search of a vehicle. Otherwise a legally carrying person could be randomly stopped on the street to be frisked/searched. That'd be the equivalent of saying "I know you're legally allowed the freedom of speech and to state your opinion, but I'm going to need to frisk you to make sure you aren't carrying drugs, too." Exercising a right doesn't equal a reason to detain and search. Another thought, we don't know if Caris was on parole. I seem to remember parolee's can be searched at any time as a condition of parole.

    Now, this part:
    Carico additionally argues that the officer did not have probable cause to perform a more thorough search of the vehicle, including its trunk. However, it is well established that, “‘f a car is readily mobile and probable cause exists to believe it contains contraband,’” an officer may search the car without a warrant.

    leads me to believe they had sufficient evidence or a RAS to stop the car and investigate/detain/search. If that's the case, they didn't need the gun as a reason. The language seems to indicate the gun as one of the reasons for the search though. Again, could be known felon, normal traffic stop and suddenly gun satisfies RAS.

    The law enforcement officer found multiple weapons and a large quantity of cash during his initial search of the vehicle. Under these circumstances, there was more than a fair probability that either controlled substances or other weapons were present.
    This logic assumes the officer had probable cause to perform the initial search, which had to be based on something we don't know to be valid.

    So, in my humble opinion, which I personally like a lot, there has to be more to the case than we know here.


    * - I'm not a lawyer, so this isn't legal advice.

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    Regular Member TFred's Avatar
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    Doesn't "It is undisputed that..." in an opinion like this generally mean that both sides agreed on whatever "that" was?

    If so, then both sides of this case agree about the fact that it was an unauthorized weapon, for whatever reason that may be.

    TFred


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    My ancient computer has trouble reading long PDF files in a reasonable amount of time, so I've got to ask for clarification: the quoted sections say the stop was initiated because the officer spotted the "unauthorized weapon" (whatever that is)?

    Was it being carried on the dash? Was the officer in an SUV looking down into the car driving next to him? How exactly did someone spot this pistol?

    If the person was a felon or otherwise prohibited person being placed under arrest, then a full "pre-impoundment inventory" (aka, "warrantless search") is authorized by court rulings, to "protect" the driver from being ripped off by the police-authorized impound yard. Apparently that wasn't the case here, or they wouldn't have worked so hard to invent an excuse to search every square inch without RAS or PC.


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    Fortunately, unpublished opinions are not binding precedent.

    There are many troubling issues with the decision, but since this is not a legal debating society I will skip the extensive listing. Suffice it to say that this case cries out for appeal to SCOTUS, but may not get there for a number of reasons.

    If I were a lawyer (I'm not) and I were giving advice (I am) it would be to comply with the legal requirements of identifying oneself and then shut up except to refuse consent for any search. Contact a lawyer as soon as practical - even if that happens to be the next morning from a jail. If you are not allowed to keep "your" lawyer's business card, make sure the person you are planning on contacting (you do have friends on the outside who will stop laughing long enough to help out, right?) knows who your lawyer is. Do not tell your friend(s) the whole sordid story as your phone call is being recorded and they can use it in court. Just tell themwhich jail you are in,and want Lawyer X to come visit you ASAP.

    stay safe.

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    Repeater wrote:
    This is yet another opinion from the Fourth Circuit where Judge Wilkinson helps the government at the expense of liberty.

    Scotty Lee Carico tells the police during a traffic stop that he has a handgun. The handgun is plainly visible, which the court oddly refers to as an "unauthorized weapon" - why would it say that?
    This is an appellate decision only dealing with the issues raised by the Defendant who did not appeal the initial stop of the vehicle.

    Perhaps the vehicle stop was valid for reasons other than the visible weapon, or perhaps the weapon was "unauthorized" because the person had moved the gun from a concealed position and the officer had reasonable suspicion that Carico did not hold a CHP; alternatively, perhaps Carico was reasonably believed already to be a prohibited person, thus providing reasonable suspicion fo the traffic stop.

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    skidmark wrote:
    Fortunately, unpublished opinions are not binding precedent.
    Yes, and that is indeed fortunate.

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    Mike wrote:
    Repeater wrote:
    This is yet another opinion from the Fourth Circuit where Judge Wilkinson helps the government at the expense of liberty.

    Scotty Lee Carico tells the police during a traffic stop that he has a handgun. The handgun is plainly visible, which the court oddly refers to as an "unauthorized weapon" - why would it say that?
    This is an appellate decision only dealing with the issues raised by the Defendant who did not appeal the initial stop of the vehicle.

    Perhaps the vehicle stop was valid for reasons other than the visible weapon, or perhaps the weapon was "unauthorized" because the person had moved the gun from a concealed position and the officer had reasonable suspicion that Carico did not hold a CHP; alternatively, perhaps Carico was reasonably believed already to be a prohibited person, thus providing reasonable suspicion fo the traffic stop.
    One of the things that's important is that this case is from the United States District Court for the Western District of Virginia, at Abingdon. So, this is in fact a Virginia case, not a case from another state within the fourth circuit, like Maryland. Does the court not recognize that open-carry is legal in Virginia? That no one needs "authorization" to open-carry? That, without the benefit of a CHP, a handgun must be visible in a vehicle, because of Leith?

    I agree that felon-in-possession could be an issue, but I also think that if that were so, the opinion would have mentioned it.

    I assume that the stop was valid and that the handgun played no role in the initial stop. Rather, Carico, perhaps as a courtesy, told the LEO that he had a gun. Thatstarted a chain of events that led to a full-blown warrantless vehicle search.

    Although the opinion is "per curiam" it has Wilkinson's fingerprints all over it. He always sides with the police over citizen liberty if the government can raise an "officer safety" argument.

    The only way to know for certain what all the facts are is to read all the briefs at the 4th circuit clerk's office.

    This opinion remains potentially dangerous because the judges responsible for it remain on the bench.


    Oh, and by the way, this Press Release provides a few details:
    According to evidence presented at trial by Special Assistant United States Attorney, Zachary Lee, CARICO, was stopped by a Blue Ridge Parkway National Park Service Ranger for possessing a weapon while driving on the Blue Ridge Parkway. During the traffic stop the ranger found a loaded .380 semi-automatic pistol, brass knuckles, and $18,641.00 in cash.
    The announcement is from John Brownlee. Which makes me wonder what he really thinks of the U.S. Fourth Amendment.

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    KBCraig wrote:
    My ancient computer has trouble reading long PDF files in a reasonable amount of time, so I've got to ask for clarification: the quoted sections say the stop was initiated because the officer spotted the "unauthorized weapon" (whatever that is)?

    Was it being carried on the dash? Was the officer in an SUV looking down into the car driving next to him? How exactly did someone spot this pistol?

    If the person was a felon or otherwise prohibited person being placed under arrest, then a full "pre-impoundment inventory" (aka, "warrantless search") is authorized by court rulings, to "protect" the driver from being ripped off by the police-authorized impound yard. Apparently that wasn't the case here, or they wouldn't have worked so hard to invent an excuse to search every square inch without RAS or PC.
    Well, this is informative:
    Wednesday, Apr 25, 2007


    On February 4th, ranger Greg Johnston saw a vehicle turning off the parkway with a bow and arrow on the rear seat. He stopped it and contacted the operator, Scotty Lee Carico of Galax, Virginia. During a search of Carico and the vehicle, Johnston recovered a concealed pistol, brass knuckles and a large amount of bundled cash. A Carroll County Sheriff’s Office canine alerted on the vehicle, leading to the discovery of about six ounces of methamphetamine, a small amount of marijuana, digital scales, cellophane bags, a box of meth pipes, night vision goggles, and an audio cassette tape containing a monologue by Carico in which he described his drug activities and ability to avoid capture. The total cash seized came to $18,473. On April 20th, Carico was found guilty by a federal jury of one count of possession with the intent to distribute 50 grams or more of a mixture containing methamphetamine and one count of possession of a firearm in furtherance of a drug trafficking offense. Sentencing is scheduled for late July.

    During the trial, Joseph Carrico, the defendant’s cousin, testified on behalf of the defendant that the pistol recovered from the vehicle was his and that he left the gun in the car when he loaned it to Scotty Carico. He also testified that he had used meth for approximately four years, had used it heavily during the months of January, February and part of March, and had purchased the gun during this time period. He said that he’d consumed meth on the day of the arrest, gone target shooting, then transported the vehicle to Scotty Carico’s location with the weapon in it.

    While the jury was deliberating, Johnston and U.S. marshals submitted a criminal complaint charging Joseph Carrico with purchase and possession of a firearm by a person addicted to a controlled substance and acquired an arrest warrant from the district court judge. He was then arrested in the lobby of the federal courthouse.

    Wow.

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    Their you go - NPS reg. 204 in action - illegal bow and arrow.

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    Mike wrote:
    Their you go - NPS reg. 204 in action - illegal bow and arrow.
    Yes, and my concern now is that the Brady Campaign could use Carico as Exhibit A in their fight to overturn the NPS carry rule.

    I wonder where Brownlee stands on this issue?

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    Repeater wrote:
    Mike wrote:
    Their you go - NPS reg. 204 in action - illegal bow and arrow.
    Yes, and my concern now is that the Brady Campaign could use Carico as Exhibit A in their fight to overturn the NPS carry rule.

    I wonder where Brownlee stands on this issue?
    I think Brownlee is running against Cuccinelli for VA AG...

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    Mike wrote:
    Repeater wrote:
    Mike wrote:
    Their you go - NPS reg. 204 in action - illegal bow and arrow.
    Yes, and my concern now is that the Brady Campaign could use Carico as Exhibit A in their fight to overturn the NPS carry rule.

    I wonder where Brownlee stands on this issue?
    I think Brownlee is running against Cuccinelli for VA AG...
    All the more reason to find out where he stands on important fourth amendment issues, open-carry tradition in Virginia, state sovereignty, and the new NPS rule, among other things. His saying that he's a conservative doesn't cut it.

    After all, J. Harvie Wilkinson claims to be a conservative, too. How's that working out?

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    What is notable is one of the Justices. Agee. He was just appointed by President Bush from The Virginia Supreme Court. So he would be somewhat familiar with Virgina law. I suspect, the suspect who was a Meth. dealer was known to the police or was under surveillance. Just a guess.

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    Virginiaplanter wrote:
    What is notable is one of the Justices. Agee. He was just appointed by President Bush from The Virginia Supreme Court. So he would be somewhat familiar with Virgina law. I suspect, the suspect who was a Meth. dealer was known to the police or was under surveillance. Just a guess.
    Does not matter - weapon was in car on National Park property. This thread started before we knew that.

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    Mike wrote:
    Virginiaplanter wrote:
    What is notable is one of the Justices. Agee. He was just appointed by President Bush from The Virginia Supreme Court. So he would be somewhat familiar with Virgina law. I suspect, the suspect who was a Meth. dealer was known to the police or was under surveillance. Just a guess.
    Does not matter - weapon was in car on National Park property. This thread started before we knew that.
    Need to change the thread title.

    Article says "visible weapon", thread title says "visible gun"

    Maybe even get some of the explanatory info updated into the OP itself so readers don't have to follow the entire thread on this one.
    I'll make you an offer: I will argue and fight for all of your rights, if you will do the same for me. That is the only way freedom can work. We have to respect all rights, all the time--and strive to win the rights of the other guy as much as for ourselves.

    If I am equal to another, how can I legitimately govern him without his express individual consent?

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    Repeater wrote:
    Well, this is informative:
    Indeed it is. It's yet another example why the War On The 4th Amendment --er, excuse me, the "War on Drugs"-- should be opposed by every 2A supporter.

    I do NOT use illegal drugs, nor even legal ones to the extent I can avoid them, but the "war" against them has done more damage to individual liberty than any other government initiative.


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    So the guy had an illegal weapon (bow and arrow) on national park land. It was seen by a park ranger. He was stopped by the ranger. He admitted to having a gun which was loaded on NP land (another violation on federal land). Then thecar was searched and drugs and money found. Busted. Guilty. Imprisoned.

    Well DUH! I got no sympathy for him.

    These were all federal charges and tried in federal court. Was the OP confused about the facts in the case or just trolling? The Original post seemed to indicate he was wrongly convicted for violating State law and Fed court upheld the conviction.
    Revelation 1911 - And I saw heaven opened, and behold a white horse; and he that sat upon him was called Faithful and True, and in righteousness he doth judge and make war.

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    mobeewan wrote:
    These were all federal charges and tried in federal court. Was the OP confused about the facts in the case or just trolling? The Original post seemed to indicate he was wrongly convicted for violating State law and Fed court upheld the conviction.
    Now you're accusing the OP of being a troll? Repeater, a troll? Seriously?

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    mobeewan wrote:
    So the guy had an illegal weapon (bow and arrow) on national park land. It was seen by a park ranger. He was stopped by the ranger. He admitted to having a gun which was loaded on NP land (another violation on federal land). Then thecar was searched and drugs and money found. Busted. Guilty. Imprisoned.

    Well DUH! I got no sympathy for him.

    These were all federal charges and tried in federal court. Was the OP confused about the facts in the case or just trolling? The Original post seemed to indicate he was wrongly convicted for violating State law and Fed court upheld the conviction.
    Original information found here at FourthAmendment.com:

    CA4: Finding gun justified protective search of car for others 12/26/08

    Knowledge that defendant had a gun in the car justified a protective search of the car for more, which turned up more. United States v. Carico, 2008 U.S. App. LEXIS 25702 (4th Cir. December 19, 2008) (unpublished).
    There was nothing in the blog entry or the opinion itself that mentioned the National Park Service. Further, there were no archery references.

    FourthAmendment.com is operated by John Wesley Hall, Jr. who is a widely respected expert on Fourth Amendment issues.

    Later, when I had more time, I used google to search for additional information.

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    So, jumped the gun er uh bow so to speak.
    Revelation 1911 - And I saw heaven opened, and behold a white horse; and he that sat upon him was called Faithful and True, and in righteousness he doth judge and make war.

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    mobeewan wrote:
    So, jumped the gun er uh bow so to speak.
    Have you read the opinion?

    Well, with the bow and arrow supposedly in plain sight inside the vehicle, this passage from the opinion seems odd:

    Carico was not in custody when he made the statement at issue as the officer had not placed him under arrest or otherwise restrained his freedom requiring the administration of Miranda warnings. See Berkemer v. McCarty, 468 U.S. 420, 440 (1984) (holding one temporarily detained in traffic stop is not in custody for Miranda purposes); United States v. Sullivan, 138 F.3d 126, 131 (4th Cir. 1998) (same). Additionally, Carico’s statement was spontaneously rendered rather than the result of any formal questioning by a law enforcement officer.
    If possessing bows and arrows inside a National Park is illegal, then he was already arrested. Yet the court claims he wasn't in custody.

    The court's opinion does not seem to square with the article on the internet, which I point out is uncorroborated. Even the Press Release I cited earlier fails to mention a bow and arrow, only mentioning a weapon:

    According to evidence presented at trial by Special Assistant United States Attorney, Zachary Lee, Carico, was stopped by a Blue Ridge Parkway National Park Service Ranger for possessing a weapon while driving on the Blue Ridge Parkway. During the traffic stop the ranger found a loaded .380 semi-automatic pistol, brass knuckles, and $18,641.00 in cash.
    That still doesn't provide sufficient details, such as how the Ranger knew the weapon in the vehicle, unless the bow was the "unauthorized weapon."

    The opinion could have been written better. Fortunately, it's "unpublished" so it lacks value for future cases.




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