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Date: 04-03-2019

Case Style:

United States of America v. Arriba W. Lewis

Case Number: 17-3592

Judge: Manion

Court: United States Court of Appeals for the Seventh Circuit on appeal from the Central District of Illinois

Plaintiff's Attorney: Adam C. Korn

Defendant's Attorney: Robert A. Alvarado

Description:





Officer Sweeney pulled Arriba
Lewis over for following too closely. Sweeney processed a
warning while Lewis, who seemed unusually nervous, sat in
the squad car. After learning Lewis was on federal supervised
release for a cocaine conviction, Sweeney requested a drugsniffing
dog roughly 5 minutes into the stop.
2 No. 17‐3592
About 10 minutes and 50 seconds after Lewis pulled over,
Sweeney handed him a warning. About 10 seconds later, a
drug‐sniffing dog and its handler approached Lewis’s car.
The dog alerted. Sweeney searched Lewis’s car and found
heroin. Lewis was charged with possession with intent to distribute
heroin. The district court denied his motion to suppress.
He appeals, arguing the officer lacked lawful grounds
to initiate the traffic stop and arguing the officer prolonged
the stop without independent reasonable suspicion for the
dog to sniff. But we disagree on both fronts, and affirm.
I. Facts
Officer Sweeney sat in an unmarked Ford SUV with an exterior
spotlight in the median of Interstate 55 in McLean
County, Illinois, watching traffic. He saw a man later identified
as Arriba Lewis driving a Dodge Charger southbound in
“a pack of vehicles traveling in close proximity to each other.”
He “was traveling right behind another vehicle in very close
proximity,” gripping the wheel at 10:00 and 2:00, and appearing
to push himself behind the side pillar in a rigid posture.
Sweeney pursued Lewis. Sweeney testified he wanted “to
see if I can observe a traffic violation and confirm [Lewis’s]
following distance which I initially saw.” But first he passed
Lewis to assist another officer. Sweeney’s dashboard camera
began recording after he passed Lewis because Sweeney triggered
his emergency lights as he approached the other officer.
Triggering these lights activated the dashcam, which was programed
to capture footage beginning 1 minute earlier. After
passing Lewis, Sweeney pulled over to the right shoulder behind
the other officer. Video recorded by Sweeney’s dashcam
shows a truck followed by Lewis pass to the left of Sweeney.
The other officer declined assistance, so Sweeney pulled out
No. 17‐3592 3
and accelerated. Several vehicles moved to the right lane to let
him pass. He saw Lewis ahead in the left lane “at the preliminary
stages of passing” a truck in the right lane. Then Lewis
changed to the right lane behind the truck. As Lewis followed
the truck, Sweeney calculated the time‐distance. He activated
a stopwatch function to record the time between the truck’s
rear passing a milepost and the Charger’s front passing the
same object. He clocked this at 1.2 seconds, meaning Lewis
followed 1.2 seconds behind the truck according to this calculation.
Lewis stayed close behind the truck for about 45 seconds
despite the lack of traffic immediately behind him.
Sweeney pulled into the right lane. He testified he activated
his emergency lights.1 He pulled Lewis over. Lewis
stopped on the right shoulder, and Sweeney pulled behind
him, at about 3 minutes, 41 seconds into the video. The video
shows Lewis made a movement to his right inside his car seconds
later. Sweeney walked to the Charger’s passenger side
and saw Lewis’s hands trembling. At about 4 minutes into the
video, Sweeney reached the front window.2 He made contact
with Lewis and asked for his license. Sweeney said:
1 The parties dispute the timing of Sweeney’s activation of his emergency
lights. Sweeney testified he activated his lights sometime after clocking
the following‐distance at 1.2 seconds. But Lewis argues Sweeney activated
his lights when he pulled over to offer assistance to the other officer, well
before clocking the following‐distance, and nothing in the record shows
he turned the lights off. This issue’s potential relevance concerns the reason
Lewis pulled into the right lane behind the truck.
2 The dashcam video (presented at the suppression hearing and submitted
to us) begins at 0 minutes, 0 seconds. The video runs for about 3 minutes,
41 seconds before showing Lewis stop on the shoulder. It then shows
Sweeney reach the front passenger‐side window of the Charger at about 4
minutes into the video. Sweeney said “Here you go. Here’s your warning,
4 No. 17‐3592
The reason I stopped you was your following distance.
You need to leave at least 3 seconds
here in Illinois. You were less than 2 behind that
semi. Ok. And that’s why I originally pulled out
on you back, way back there, too. You had another
car you were following.3
Sweeney testified Lewis’s hands trembled and his breathing
seemed heavy and labored. Sweeney told Lewis he would
just get a warning, not a ticket, and told him to sit in the squad
car during preparation of the warning. After “hem‐haw[ing]”
and failing to exit his car expeditiously, when he finally began
to exit he reached back in his car. Then he put his hands up as
he walked. Sweeney said, “You’re fine man. Relax.”
In the squad car, Sweeney typed information into a computer
and talked with Lewis. The first step of completing the
warning was ensuring, via computer, he had a valid license.
Upon this check, the computer automatically showed he was
on federal probation4 for a cocaine conviction. Sweeney
ok,” and handed it to Lewis at about 14 minutes, 31 seconds into the video.
Thus, the total time from Lewis pulling over to Sweeney handing him the
warning is about 10 minutes, 50 seconds. The dog sniff began about 10
seconds later and took about 1 minute, 8 seconds. References to the video’s
time during the stop include about 4 minutes before Sweeney reached
Lewis’s window. The video’s length does not equal the duration of the
stop. As we show below, Lewis sometimes conflates the video’s length
with the duration of the stop. But they are not the same.

3 We base our quotations of Sweeney and Lewis during the stop on the
video. Any deviations are immaterial.
4 Sweeney used the word “probation,” apparently because his computer
did not distinguish between this and supervised release. Actually, Lewis
was on the latter. But the distinction is immaterial here.
No. 17‐3592 5
testified the computer returned information based on the license
within 1 minute of sitting in the squad car.
About 2 minutes after Lewis pulled over, Sweeney asked
where he was headed. Lewis said he was going to pick his son
up. Sweeney asked where. Lewis said, “School … St. Louis.”
Sweeney asked how old the son was. Lewis said, “26.” He explained
his son wanted to return to Chicago. Sweeney asked
where the son went to school. Lewis replied his son worked
in a warehouse. Lewis added his son “got into it” with his
girlfriend. This exchange lasted slightly less than a minute.
Sweeney thought the story seemed suspiciously inconsistent.
About 3.5 minutes after Lewis pulled over, he asked about
the 3‐second guideline Sweeney mentioned:
Lewis: So you got to be how many feet back?
Sweeney: It’s not feet. It’s seconds. You need to
be at least 3 seconds.
Lewis: Oh. Ok.
Sweeney: Ok. You were 1.2.
Lewis: How you measure that?
Sweeney: It’s just a stopwatch function on here.
So when the, with the semi, when it goes by a
stationary object which was the milepost back
there is what I used. When the back of that goes
past that stationary object I start it. When the
front of your vehicle goes past that same object
I stop it.
About 5 minutes after Lewis pulled over, Sweeney asked
him what he does for work, and he said he drove a truck.
Roughly 5 minutes after first making contact with Lewis at his
window, Sweeney requested a drug‐sniffing dog via a
6 No. 17‐3592
messaging system. Lewis concedes Sweeney requested the
dog after hearing Lewis’s answers regarding his travel plans
and after learning via computer he had a prior drug conviction
for which he was on supervised release.
About 6 minutes after Lewis pulled over, Sweeney said
something was taking a minute to update. Then he asked
Lewis how long his son had been in St. Louis, how often
Lewis visited, and whether Lewis drove a truck “over the
road.” Sweeney testified Lewis’s breathing continued to appear
labored in the squad car, even after hearing he would
only get a warning. Nearly 8 minutes after Lewis pulled over,
Sweeney said Illinois barred the air freshener hanging from
Lewis’s mirror because it obstructed the view. Sweeney asked
Lewis what part of St. Louis he was going to. Sweeney testified
Lewis never asked if he was free to go.
Sweeney then said, “in correlation with our safety detail
today … we do have a canine dog working with us.” Sweeney
asked if Lewis was responsible for everything in the car.
About 10 minutes after Lewis pulled over, Sweeney said, “I’m
gonna print this off. I’m gonna have the dog walk around the
exterior of the vehicle, ok.” About 20 seconds later, the dashcam
records the sound of the warning printing. Then Sweeney
asked if Lewis was on probation. He responded in the affirmative.
Nearly 11 minutes after Lewis pulled over, Sweeney
said, “Here you go. Here’s your warning, ok.”5 Sweeney gave
the warning to Lewis, explained it, and said, “So you’re going
to St. Louis though.” At the word “though,” at about 14
minutes, 41 seconds into the video (about 10 seconds after
5 This comports with his testimony that he completed the “warning paperwork”
roughly 10 minutes, 40 seconds after initiating the stop.
No. 17‐3592 7
giving the written warning) a dog appeared on the video and
approached the rear passenger side of Lewis’s car. Lewis confirmed
he was going to St. Louis. Sweeney said that was outside
Illinois. They talked about Lewis’s probation and prior
incarceration while the dog circled his car.
About 12 minutes after Lewis pulled over (about 1 minute,
18 seconds after Sweeney gave the written warning to Lewis,
and about 1 minute, 8 seconds after the dog sniff began) the
handler told Sweeney the sniff was positive. Sweeney
searched Lewis’s car and quickly found 208 grams of heroin.
II. Procedural posture
Lewis was charged with possession with intent to distribute
heroin. The district court denied his motion to suppress.
He entered a conditional guilty plea. A career offender at
criminal history category VI, he received a sentence of 20
years incarceration. He appeals the denial of suppression,
raising two main issues. First, he challenges the traffic stop’s
initiation. Second, he challenges the sniff’s initiation. “We employ
a mixed standard of review on motions to suppress, reviewing
the district court’s factual determinations for clear error
and de novo its ultimate determination about whether the
police had sufficient grounds to stop or search the individual.”
United States v. Rodriguez‐Escalera, 884 F.3d 661, 667 (7th
Cir. 2018) (internal quotation marks omitted).
III. Discussion
A. Traffic stop
1. Law
Lewis argues Sweeney did not have legal grounds to start
the traffic stop. If Lewis is right, then the court should have
8 No. 17‐3592
suppressed the heroin as fruit of the poisonous tree. The
Fourth Amendment protects against “unreasonable searches
and seizures.” U.S. Const. amend. IV. Whenever police stop a vehicle, the stop must meet the Fourth Amendment’s reasonableness
requirement. Delaware v. Prouse, 440 U.S. 648, 663
(1979). If a search or seizure violates the Fourth Amendment,
a court will generally exclude resulting evidence. United States
v. Wilbourn, 799 F.3d 900, 910 (7th Cir. 2015).
The district court determined probable cause justified initiating
the stop.6 Generally, “the decision to stop an automobile
is reasonable where the police have probable cause to believe
that a traffic violation has occurred.” Whren v. United
States, 517 U.S. 806, 810 (1996). “Probable cause exists when
‘the circumstances confronting a police officer support the
reasonable belief that a driver has committed even a minor
traffic offense.’” United States v. Muriel, 418 F.3d 720, 724 (7th
Cir. 2005) (quoting United States v. Cashman, 216 F.3d 582, 586
(7th Cir. 2000)). Probable cause is an objective standard, based
on the totality of the circumstances. If an officer reasonably
thinks he sees a driver commit a traffic violation, that is sufficient
grounds to pull him over without offending the Constitution.
Muriel, 418 F.3d at 724. The officer is not the judge.
Whether the driver actually committed a traffic infraction is
irrelevant for Fourth Amendment purposes so long as there
was an objective basis for a reasonable belief he did. Cashman,
216 F.3d at 587.


6 The lower standard of reasonable suspicion is enough to justify some
traffic stops. Navarette v. California, 572 U.S. 393, 396 (2014); Prouse, 440 U.S.
at 663; Rodriguez‐Escalera, 884 F.3d at 667–68. But we need not apply this
standard here because the district court did not err in finding probable
cause.

No. 17‐3592 9

2. Analysis

Here, Sweeney had more than ample grounds to pull
Lewis over. As Sweeney sat in the median, he thought he saw
Lewis following another vehicle too closely. That initial observation
alone probably satisfied the Constitution, but we
need not decide that because Sweeney pursued Lewis and
conducted a time‐distance calculation to confirm he followed
a vehicle too closely. Sweeney calculated Lewis’s followingtime‐
distance at 1.2 seconds. Whether Lewis actually followed
by 1.2 seconds exactly is irrelevant for purposes of the
Fourth Amendment. It is enough that this calculation supported
a reasonable belief Lewis was breaking the law.

Lewis mainly argues the 3‐second rule mentioned by
Sweeney during the traffic stop is merely the Illinois Secretary
of State’s recommendation, not the actual law. But this is a red
herring because the standard for probable cause is objective.
See Whren, 517 U.S. at 814 (“[T]he Fourth Amendment’s concern
with ‘reasonableness’ allows certain actions to be taken
in certain circumstances, whatever the subjective intent.”);
Scott v. United States, 436 U.S. 128, 138 (1978) (“[T]hat the officer
does not have the state of mind which is hypothecated
by the reasons which provide the legal justification for the officer’s
action does not invalidate the action taken as long as
the circumstances, viewed objectively, justify that action.”).
The objective circumstances support probable cause to pull
Lewis over based on the two observations of him following
too closely, in violation of the law:

The driver of a motor vehicle shall not follow
another vehicle more closely than is reasonable
and prudent, having due regard for the speed of

10 No. 17‐3592

such vehicles and the traffic upon and the condition
of the highway. 625 ILCS 5/11‐710(a). Here, it does not matter
whether the Secretary’s recommendation comports with the statute.
Nor does it matter that Sweeney referenced the recommendation during
the stop. Regardless, Sweeney objectively had grounds for
a reasonable belief Lewis was following too closely based on
the two observations (and based on the clocked observation
alone).7

And this brings us to Lewis’s next argument. He faults the
court for not giving effect to the statutory language requiring
a driver to act based on the “condition of the highway.” He
argues the major highway condition was Sweeney’s squad car
approaching Lewis from behind. Lewis argues Illinois law required
him to pull immediately into the right lane when he
saw the squad car approaching. He argues he had a legal duty
not to obstruct it. He argues he chose the least of the available
evils when he pulled from the left lane into the right lane behind
the truck to yield to Sweeney. Lewis goes so far as to

7 Lewis argues: “For the Government to have met its burden of establishing
probable cause for a 625 ILCS 5/11‐710(a) violation, it had to prove Mr.
Lewis was driving in a way that was not ‘reasonable or prudent’ given the
‘speed of [other] vehicles’ and the ‘condition of the highway.’” (Appellant’s
Reply at 9–10.) That is wrong. To show the constitutionality of the
traffic stop’s start, the government merely needed to show an objective
basis for a reasonable belief Lewis followed too closely, not that he actually
followed too closely. Whether Lewis actually followed at 1.2 seconds
and whether 1.2 seconds was actually too close, given all the conditions of
the highway, are irrelevant to whether there was probable cause sufficient
to initiate the stop, and ultimately would have been for a traffic court to
decide (if Sweeney issued a ticket instead of a warning).

No. 17‐3592 11

argue Sweeney “impermissibly created the grounds for the
stop,” manufacturing a “police‐created exigency.”

The main problem with this argument is that it does nothing
to justify or explain why Lewis stayed in the right lane in
close proximity behind the truck for about 45 seconds after
pulling into the right lane behind the truck. As the video
demonstrates, no vehicles at this stage forced Lewis to tailgate
the truck. Regardless of the status of Sweeney’s emergency
lights, Lewis offers no reason why he could not have eased
back from the truck. Moreover, Lewis’s argument does nothing
to undermine Sweeney’s observation from the median.

The court properly relied on Muriel, where an officer’s “estimation
of the following distance amounted to probable
cause to believe that [the suspect’s] vehicle was ‘more close[ ]
than is reasonable and prudent.’” Muriel, 418 F.3d at 724
(quoting Ind. Code 9‐21‐8‐14). The court did not err in concluding
probable cause supported initiating the stop.

B. Dog sniff

1. Law

An officer who reasonably starts a traffic stop, however,
might violate the Constitution if he exceeds the scope or unreasonably
prolongs the stop. A traffic stop “‘can become unlawful
if it is prolonged beyond the time reasonably required
to complete th[e] mission’ of issuing a warning ticket.” Rodriguez
v. United States, 135 S. Ct. 1609, 1614–15 (2015) (quoting
Illinois v. Caballes, 543 U.S. 405, 407 (2005)). It is well‐established
a dog sniff of a vehicle’s exterior only for illegal drugs
during a lawful stop for a traffic violation does not infringe
Fourth Amendment rights, even absent reasonable suspicion
of drugs. Caballes, 543 U.S. at 410. But it is also well12

No. 17‐3592

established a stop justified only by a traffic violation becomes
unlawful if it is prolonged beyond the time reasonably required
to complete the stop’s original mission. Rodriguez, 135
S. Ct. at 1612. An officer may conduct “certain unrelated
checks”—including a dog sniff—during a lawful traffic stop,
but “he may not do so in a way that prolongs the stop, absent
the reasonable suspicion ordinarily demanded to justify detaining
an individual.” Id. at 1615. Absent independent reasonable
suspicion to justify the sniff, the critical question is
not whether the sniff occurs before or after the officer issues
the warning, “but whether conducting the sniff ‘prolongs’—
i.e., adds time to—‘the stop’ … .” Id. at 1616. But with independent
reasonable suspicion, the officer may detain the suspect
for the sniff even if the sniff adds time to the total stop.

Here, the district court concluded the stop (from its start
to the moment Sweeney handed Lewis the warning) was not
prolonged past the time reasonably required to complete the
mission of issuing a warning. And the district court determined
independent reasonable suspicion justified extending
the stop by about 1 minute for a canine unit to arrive.


2. Analysis

Lewis argues even if the stop started lawfully, the heroin
should be suppressed because the dog sniffed after a prolonged
detention without reasonable suspicion. But he leads
with a patent mistake. He claims Sweeney was completely finished
with the warning at 10 minutes, 40 seconds into the
video but did not print it until 14 minutes, 31 seconds into the
video, a claimed unjustified delay of nearly 4 minutes. But the
video and Sweeney’s testimony flatly contradict this. Lewis
mistakenly treats Sweeney’s testimony about the time on the
video’s clock when he printed the warning as testimony about

No. 17‐3592 13

the duration of the stop up to the point he printed it. Sweeney
testified he calculated the time it took him to complete the
warning paperwork after he initiated the traffic stop (not after
the video began) to be 10 minutes and 40 seconds. He testified
that at 14 minutes, 26 seconds into the video (not into the stop)
he said “Here you go” as he gave the warning to Lewis. The
bottom line is the video and testimony show there was no unreasonable
delay between finishing the warning and handing
it to Lewis. The claimed delay of about 4 minutes merely mirrors
the difference between the video’s clock and the duration
of the stop, because the stop begins about 4 minutes into the
video. The simple fact, shown by the video and testimony, is
Sweeney printed the warning between 10 and 11 minutes into
the stop and promptly gave it to Lewis. His false equivocation
infects some of his remaining arguments.

Lewis next argues Sweeney unlawfully prolonged the detention
by taking time to impermissibly confine and question
him about issues unrelated to the warning, and he raises several
detailed points. But each point fails.

Lewis argues switching cars took 1 minute. But he does
not explain why this delay was unlawful or why sitting in the
squad car was impermissible. We already determined the
court did not err in concluding the initiation of the traffic stop
was permissible. Lewis does not explain why moving him to
the squad car was not reasonably incidental. See United States
v. Baker, 78 F.3d 1241, 1244 (7th Cir. 1996) (During a valid traffic
stop, an officer may “legitimately ask [a driver] to step out
of his car, even without any particularized suspicion,” and
may ask the driver “to sit in his patrol car … .”). Nor does he
explain why, during the minute between Sweeney asking

14 No. 17‐3592

Lewis to exit his car and Lewis entering the squad car, he
spent about 40 seconds in his car after being asked to exit.

Lewis next argues Sweeney spent 6 minutes and 15 seconds
asking about irrelevant travel matters and explaining
how a canine unit will arrive. Lewis cites two parts of the
video in support. There are several problems with Lewis’s argument
here. The first challenged part of the video begins
with Sweeney asking, “Where are we headed to today, sir?”

Officers across the country would be surprised if we countenanced
the characterization of this basic, routine question as
irrelevant to a traffic stop. Lewis’s initial response to this question
was not entirely forthcoming: “Pick my son up.” That response
naturally led to Sweeney’s next question: “Where’s
that at?” Again, Lewis’s response was not entirely forthcoming:

“School … St. Louis.” So Sweeney asked how old the son
was and where he went to school. Lewis gave the age, brought
up returning to Chicago, never answered about school,
brought up his son’s work in “some warehouse,” and brought
up a situation between his son and his son’s girlfriend.

The Constitution allows an officer to ask these questions
during a traffic stop, especially when the answers objectively
seem suspicious. See Muriel, 418 F.3d at 726 (Although questions
prolonging custody might affect the detention’s reasonableness,
police “may ask questions that do not concern the
purpose of the stop and that are not supported by any other
suspicion.”); United States v. Childs, 277 F.3d 947, 954 (7th Cir.
2002) (“What the Constitution requires is that the entire process
remain reasonable. Questions that hold potential for detecting
crime, yet create little or no inconvenience, do not turn
reasonable detention into unreasonable detention.”) And
Lewis could have refused to answer at some point. But the

No. 17‐3592 15

biggest problem with Lewis’s argument here is he does not
show any reason these exchanges prolonged the process of issuing
the warning. The video and testimony both document
Sweeney worked on the warning while talking with Lewis.

The court did not err in determining the duration of the
stop (from its start to the moment Sweeney handed Lewis the
warning) was not prolonged past the time reasonably required
to complete the mission of issuing a warning.

The court turned to the issue of whether Sweeney obtained
enough information during the stop before issuing the
warning to have independent reasonable suspicion of criminal
activity to justify detaining Lewis further. Sweeney
handed Lewis the warning about 10 minutes, 50 seconds after
Lewis pulled over. The dog alerted roughly 1 minute later.

Even if the period between handing the warning and the dog
alerting could be called a delay of about 1 minute8 it was justified
by independent reasonable suspicion, as the court held.

Reasonable suspicion requires “‘specific and articulable
facts which, taken together with rational inferences from
those facts,’ suggest criminal activity.” United States v. Ruiz,
785 F.3d 1134, 1141 (7th Cir. 2015) (quoting Terry v. Ohio, 392
U.S. 1, 21 (1968)). Reasonable suspicion is an objective standard,
considering the totality of the circumstances. By the time

8 We question whether even this minute can be characterized as a delay to
wait for a dog, because immediately after handing Lewis the warning and
explaining in a quick and routine manner what it is, Sweeney brings up
the apt point that Lewis said he was going to St. Louis, but his terms likely
restrict his freedom to leave Illinois. But we need not explore this further
because we agree with the district court that Sweeney had independent
reasonable suspicion to detain Lewis after handing him the warning to
allow the dog time to sniff.

16 No. 17‐3592

Sweeney issued the warning, this is what he objectively had
reason to know. One, Lewis seemed unusually nervous even
after hearing he would only get a warning. His hands trembled.
His breathing was heavy and labored. Nervousness can
raise reasonable suspicion. Illinois v. Wardlow, 528 U.S. 119,
124 (2000). Two, he was on supervised release for a drug offense.
Criminal histories can support reasonable suspicion.
United States v. Sanford, 806 F.3d 954, 959 (7th Cir. 2016).
(Sweeney had these objective grounds for reasonable suspicion
even without asking any questions Lewis now challenges.)
Three, his travel explanations seemed suspiciously
inconsistent, which can raise reasonable suspicion. Muriel, 418
F.3d at 726. These factors legitimately gave rise to objective
reasonable suspicion.

This is true even if Lewis always breathes heavily, with
constantly trembling hands. Even if he were actually innocent
of the prior drug charge and a judge planned to exonerate him
next morning. Even if his son actually studied and worked in
St. Louis, quarreled, and wanted to return to Chicago. Regardless,
objective reasonable suspicion of criminal activity
supported detaining Lewis to allow a dog to sniff. Perhaps we
could add his rigid posture, furtive movements, “hem‐hawing,”
and I‐55’s drug‐trafficking reputation. But we need not.

We conclude the district court did not err in determining
any delay beyond the routine traffic stop to allow the dog to
sniff was justified by independent reasonable suspicion.

Outcome: IV. Conclusion
We considered all Lewis’s arguments and found none
availing. We AFFIRM the denial of suppression.

Plaintiff's Experts:

Defendant's Experts:

Comments:



 
 
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