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       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON                           ill
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THE STATE OF WASHINGTON,                  )         No. 77426-3-1             t
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                                          )
                                                                             7zsi
                   Respondent,            )         DIVISION ONE
                                                                             .4,;) -± r-
                                          )                                         G-107.
                                                                                    --IQ
            v.                            )         PUBLISHED OPINION
                                          )
DAVID BRENT HAGGARD,                      )
                                          )
                   Appellant.             )
                                          )         FILED: June 3, 2019


       HAZELRIGG-HERNANDEZ,     J. — David B. Haggard seeks reversal of his

convictions for arson and burglary, arguing that he was sentenced based on an

improper offender score. Haggard contends that his score was miscalculated

because a misdemeanor conviction dismissed after successful completion of a

deferred sentence should not have interrupted the washout period for his prior

class C felony convictions.     Because the plain language of the statute is

unambiguous and does not indicate that the legislature intended dismissal to be

equivalent to vacation, we affirm.

                                     FACTS

       David Haggard was convicted of three felonies in California in 2002, 2004,

and 2005. He was released from incarceration for the last of these offenses on

 May 22, 2008.    Haggard was charged with assault in the fourth degree in

Snohomish County District Court for events occurring in late 2010 and pleaded
No. 77426-3-1/2


guilty to the reduced charge of disorderly conduct. Haggard received a deferred

sentence. On March 1, 2012, the Snohomish County District Court found Haggard

to be in compliance with the conditions of his deferred sentence and dismissed the

case ex parte.

       In this case, Haggard was charged with arson in the second degree and

burglary in the second degree for events that took place on June 5, 2016. The trial

court engaged in a full colloquy with Haggard and found that he knowingly,

voluntarily, and intelligently waived his right to a jury trial and stipulated to the facts.

The court found sufficient facts beyond a reasonable doubt to convict Haggard of

both arson in the second degree and burglary in the second degree.

       The State filed a memorandum detailing the timing of Haggard's prior

convictions, which affected his offender score. The State argued that the critical

distinction between dismissal and vacation was that a prior vacated offense would

not impact a future offender score. Because Haggard's 2010 conviction had been

dismissed but not vacated, the State contended that he was not entitled to exclude

his prior California felony convictions from the offender score calculation. Haggard

argued in response that the supreme court's analysis of the analogous felony

dismissal and vacation statutes compelled the conclusion that a misdemeanor

dismissed after a deferred sentence may not be included when calculating an

offender score.

       The court also heard oral argument on Haggard's offender score. The State

argued that the governing statute specifically states that vacated convictions will

not be used to calculate a future offender score but does not provide the same


                                             2
No. 77426-3-1/3


benefit to charges dismissed after a deferred sentence. Haggard responded that

the distinction between "vacation" and "dismissal" was artificial and the two terms

were interchangeable for misdemeanor convictions.         He argued that the two

statutes recognized a procedural distinction and applied in different stages:

dismissal when the trial judge still had jurisdiction over a defendant and vacation

when the trial court no longer had jurisdiction because the defendant's probation

had expired.

         Haggard argued that the statute was ambiguous because it was unclear

whether vacation under RCW 9.96.060 had a different legal effect than a dismissal

under RCW 3.66.067, and the court should apply the rule of lenity in his favor. The

State responded that RCW 9.96.060 was not ambiguous because it was a general,

stand-alone statute that applied to all courts in which a defendant seeks vacation

of a misdemeanor. The trial court found that the statute was not ambiguous and

that it was clear from the language of the statute that the defendant had to petition

the court and give notice to the prosecutor to have the conviction vacated. Only

then would the court exclude the prior conviction when calculating an offender

score.     Therefore, the court found that Haggard's dismissed misdemeanor

conviction interrupted the washout period for his prior felonies because the

misdemeanor was not vacated.

         Because Haggard's prior felonies did not wash out, the court determined

that he had an offender score of six. Haggard was sentenced to 39 months

imprisonment on the arson charge and 29 months on the burglary charge. The

sentencing hearings for this matter and another case in which Haggard was


                                         3
No. 77426-3-1/4


convicted of unlawful possession of a firearm and violation of the Uniform

Controlled Substances Act occurred simultaneously. All four sentences were

ordered to run concurrently. Haggard timely appealed. Haggard also appealed

this same issue with a separate Statement of Additional Grounds for Review in

State of Washington v. David B. Haggard, No. 77427-1-1.

                                       DISCUSSION

I.     Offender Score

       Haggard contends that his dismissed 2010 conviction should not have been

included in his criminal history when calculating his offender score because

dismissal of a misdemeanor conviction is equivalent to vacation of that conviction.

       We review both offender score calculations and questions of statutory

construction de novo. State v. Mutch, 171 Wn.2d 646, 653, 254 P.3d 803 (2011);

State v. Breazeale, 144 Wn.2d 829,837, 31 P.3d 1155(2001). Our objective when

interpreting a statute is to determine the legislature's intent. State v. Jones, 172

Wn.2d 236, 242, 257 P.3d 616 (2011). We will give effect to the plain meaning of

a statute if it is evident from the text of the statute itself and context within the

statutory scheme. Id. If the statute is susceptible to more than one reasonable

interpretation, it is ambiguous. Id.

       A defendant's offender score is calculated according to RCW 9.94A.525.

Generally, prior felony convictions each count as one point toward the offender

score, except in certain specific circumstances set out in the statute. RCW

9.94A.525. However, some prior class C felonies can "wash out" (that is, be

excluded from the calculation) if the offender spent five consecutive years in the


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No. 77426-3-1/5


community without committing any crime that results in a conviction since the last

date of confinement. RCW 9.94A.525(2)(c). The issue before the trial court was

whether Haggard's dismissed 2010 conviction interrupted the washout period for

his prior class C felony offenses.

       Courts of limited jurisdiction may dismiss misdemeanor offenses under

RCW 3.50.320 and RCW 3.66.067.1                On a showing of good cause during a

deferred sentence, the court may allow the defendant to withdraw a guilty plea,

enter a plea of not guilty, and dismiss the charges. RCW 3.50.320; RCW 3.66.067.

The dismissal statutes do not limit the number of deferred sentences a person may

receive or the number of cases that may be dismissed. RCW 3.50.320; RCW

3.66.067. Although the statutes do not explicitly state the effect that dismissal has

on a defendant's criminal history, Division Three of this court has remarked that

Inlothing in RCW 3.66.067 implies that a conviction is automatically deleted or

expunged from the criminal record after dismissal." State v. Gallaher, 103 Wn.App.

842, 844, 14 P.3d 875 (2000).

       A person convicted of a misdemeanor offense who has satisfied the terms

of the sentence may apply to the sentencing court for vacation of the conviction.

RCW 9.96.060(1). The court may in its discretion vacate the record of conviction

if the applicant qualifies under the relevant statute. RCW 9.96.060(1)—(2). Certain

offenses, including violent offenses, driving under the influence offenses, and sex

offenses, are not eligible for vacation. RCW 9.96.060(2)(b)—(c).                 If the court



1 Although RCW 3.50.320 applies to municipal courts and RCW 3.66.067 applies to district
courts, the provisions of the two statutes are functionally identical.


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No. 77426-3-1/6


vacates the record of conviction, the applicant "shall be released from all penalties

and disabilities resulting from the offense and the fact that the person has been

convicted of the offense shall not be included in the person's criminal history for

purposes of determining a sentence in any subsequent conviction." RCW

9.96.060(5)(a). A person may not have a misdemeanor conviction vacated if "[t]he

applicant has ever had the record of another conviction vacated." RCW

9.96.060(2)(h).

       Apart from the limited reference in State v. Gallaher, 103 Wn. App 842, 14

P.3d 875 (2000), Washington courts do not seem to have addressed the

relationship between the misdemeanor dismissal and vacation statutes. However,

the Ninth Circuit Court of Appeals has considered whether a federal defendant's

prior Washington state misdemeanor conviction, which had been dismissed under

RCW 3.66.067, could be used in calculating his offender score. United States v.

Vassar, 40 Fed. Appx. 463, 465 (9th Cir. 2002)(unpublished). The court found

nothing in the misdemeanor statute evidencing the legislature's intent that the

dismissed conviction be set aside or expunged from the record. Id. at 466. The

Ninth Circuit relied on this court's statement about the misdemeanor statute in

Gallaher for support of that proposition. Id. Ultimately, the court concluded that the

district court had properly included the defendant's dismissed misdemeanor

conviction as part of his criminal history when calculating his offender score. Id. at

466.

       The Washington Supreme Court considered a similar issue concerning

analogous felony statutes in In re Carrier, 173 Wn.2d 791, 272 P.3d 209 (2012).


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No. 77426-3-117


In Carrier, the petitioner argued that the trial court improperly counted a dismissed

felony conviction as a strike in his criminal history. Id. at 796. He argued "that

dismissing a conviction pursuant to former RCW 9.95.240 is equivalent to vacating

a conviction under former RCW 9.94A.640" and "that the two statutes have the

same legal effect in removing convictions from a defendant's criminal history." Id.

at 804.

      The Carrier court discussed its prior decision regarding the relationship

between the felony dismissal and vacation statutes in Breazeale. The court

clarified that its holding in Breazeale was "that a court's dismissal of a pre—SRA

conviction pursuant to former RCW 9.95.240 has the same legal effect as vacating

the conviction under the SRA." Carrier, 173 Wn.2d at 806.                The court

acknowledged that Carrier would prevail under the rationale in Breazeale, but went

on to note that the legislature had amended RCW 9.95.240 in response to

Breazeale to require a two-step process to vacate pre-SRA convictions. Id. at 806-

07. However, the court concluded that Carrier was entitled to relief because the

amendment did not apply to him retroactively. Id. at 818-19.

      In his written argument to the trial court, Haggard drew the court's attention

to the Supreme Court's comment in Carrier that Breazeale would compel the

conclusion that Carrier's dismissed conviction should not have been included in

the calculation of his offender score if not for the subsequent amendment to the

statute. He contended that, because the misdemeanor statute was not similarly

amended, Breazeale controls the result in this case. However, the court in

Breazeale relied on the language of the felony dismissal statute mandating that,


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No. 77426-3-1/8


after dismissal, the defendant "'shall thereafter be released from all penalties and

disabilities resulting from the offense or crime of which he has been convicted."

Breazeale, 144 Wn.2d at 835 (quoting former RCW 9.95.240). This language was

common to both the dismissal and vacation statutes. Id. at 837. The court had

previously interpreted that statement"to mean that a person who has been granted

dismissal under RCW 9.95.240 is entitled to assert that he or she has never been

convicted." Id. (citing In re Discipline of Stroh, 108 Wn.2d 410, 417-18, 739 P.2d

690 (1987)). This language does not appear in the misdemeanor dismissal

statutes. RCW 3.50.320; RCW 3.66.067.

       The language of the misdemeanor dismissal and vacation statutes is clear

and unambiguous. Although the misdemeanor dismissal statutes do not explicitly

state the effect of dismissal on the defendant's record, the existence of a separate

procedure for vacation implies that the legislature did not intend for a dismissal to

automatically have the same effect as a vacation. The vacation statute contains

numerous limitations that are not present in the dismissal statutes, including

restrictions on the offenses that are eligible for vacation and the number of

convictions that a person may have vacated. A defendant must also apply to the

court for vacation, while dismissal can be carried out ex parte, as it was in this

instance. Therefore, we find that the two procedures are not equivalent and

dismissal does not automatically have the same effect as vacation. The trial court

correctly found that Haggard's dismissed 2010 conviction interrupted the washout

period for his prior felonies, and did not err in sentencing him based on an offender

score of six.


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No. 77426-3-1/9


II.    Statement of Additional Grounds

        In a Statement of Additional Grounds, Haggard contends that the trial court

erred in denying his motions to compel production of evidence and his motion to

suppress evidence stemming from an allegedly defective search warrant. Haggard

primarily relies on the briefing filed below and adopts the arguments raised by trial

counsel.

       In July 2016, Detective Christina Bartlett applied for a warrant to search the

property where Haggard and his sister, Jamie,2 had been living before Jamie's

disappearance. During the execution of that warrant on July 15, 2016, officers

discovered evidence of the crimes with which Haggard was later charged in this

case. Haggard subpoenaed a copy of the affidavit supporting the search warrant

and King County Sheriff's Office provided him with a redacted copy.

       A. Motions to Compel

       Haggard contends that the trial court erred in denying two motions to

compel production of evidence. The first motion sought to compel an unredacted

copy of Det. Bartlett's affidavit in support of the search warrant, but the State

objected on the grounds that disclosure would compromise the ongoing

investigation into Jamie's disappearance. The trial court reviewed the unredacted

warrant affidavit in camera and denied the motion to compel. The second motion

sought production of investigative records pertaining to Jamie's disappearance.




2 To avoid confusion, Jamie Haggard will be referred to by her first name. We intend no
disrespect.


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No. 77426-3-1/10


The trial court also denied this motion. The record on appeal is insufficient to allow

for our review of these rulings.

       B. Motion to Suppress

       Finally, Haggard contends that the trial court erred in denying his motion to

suppress evidence obtained from the execution of a search warrant at his

residence. He argues that the warrant was neither supported by probable cause

nor constrained by adequate particularity, and that Det. Bartlett recklessly omitted

material information from her affidavit. He also claims that the search exceeded

the scope of the warrant and that witness statements obtained during the execution

of the warrant should have been excluded.

       Conclusions of law in an order pertaining to suppression of evidence are

reviewed de novo. State v. Gaines, 154 Wn.2d 711, 716, 116 P.3d 993 (2005).

We review challenged findings of fact for substantial evidence. State v.

Winterstein, 167 Wn.2d 620, 628, 220 P.3d 1226 (2009). Unchallenged findings

of fact are viewed as verities on appeal. Gaines, 154 Wn.2d at 716.

       Haggard moved to suppress the evidence collected during the searches of

his residence on July 15, 2016 and September 1, 2016, as well as the "search of

his private affairs" on August 18, 2016, arguing that they violated his constitutional

rights. In his motion to suppress, Haggard raised various arguments challenging

all three searches. In his Statement of Additional Grounds, Haggard assigns error

only to the denial of the motion to suppress evidence obtained from the search

warrant executed on July 15, 2016.




                                       -10-
No. 77426-3-1/11


           1. Issuance of Warrant

                 a. Probable Cause

       First, Haggard argues that the affidavit in support of the search warrant did

not establish probable cause to believe that evidence of specific criminal activity

would be found in his residence. Haggard contends that there was no probable
          '...
cause to believe that Jamie was murdered or that there would be evidence of

criminal activity in the place to be searched or items to be seized. The trial court

found that there was sufficient probable cause detailed in the affidavit to allow a

search of the premises.

       A magistrate may only issue a search warrant after a showing of probable

cause. State v. Clark, 143 Wn.2d 731, 747, 24 P.3d 1006 (2001) (citing U.S.

CONS-1. amend. IV). Probable cause requires only a probability of criminal activity,

not a prima facie showing. Id. at 748. If the affidavit in support of the warrant sets

forth facts and circumstances sufficient to establish a reasonable inference that a

person is probably involved in criminal activity and the evidence of the crime could

be found in the place to be searched, probable cause exists. State v. Them, 138

Wn.2d 133, 140, 977 P.2d 582 (1999). Generally, appellate courts review the

issuance of a search warrant only for abuse of discretion, giving great deference

to the issuing judge or magistrate. State v. Neth, 165 Wn.2d 177, 182, 196 P.3d

658 (2008). However, when the trial court has reviewed the affidavit supporting

the warrant after a motion to suppress, the trial court's finding of probable cause

is a legal conclusion that we review de novo. Id.
No. 77426-3-1/12


       In the affidavit, Det. Bartlett states that Jamie; her half-brother, Haggard; his

girlfriend, Carlee Chew; and Jason Nolte lived together in the Kenmore house.

Jamie disappeared without notice to anyone, including the person with whom she

had plans the day after her disappearance. She had been involved in a physical

altercation with Haggard the day before she disappeared. Haggard filled in a hole

at the property soon after her disappearance and impersonated Jamie in a text

message to their sister. Additionally, Haggard's accounts of the events leading up

to Jamie's disappearance changed multiple times over the course of his contacts

with police. Because the affidavit sets forth these facts, which are sufficient for a

reasonable person to conclude that Haggard was involved in criminal activity and

evidence of that activity could be found in the residence, probable cause existed

to issue the warrant.

              b. Particularity

       Haggard also argues that the warrant was overbroad because it lacked

sufficient particularity as to the items to be seized. Specifically, Haggard contends

that the warrant allowed property belonging to other residents of the house to be

seized because it did not provide objective standards for distinguishing between

Jamie's belongings and the belongings of the other residents.

       Det. Bartlett's affidavit said that she believed that evidence of Jamie's

murder could be found at the Kenmore house, in Haggard's truck, in Nolte's car,

and in the phone records of the relevant parties. The affidavit listed a specific date

range for the cell phone data and position information to be searched. The affidavit

also listed examples of items in the house that would help to establish whether


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No. 77426-3-1/13


Jamie was missing        voluntarily, including "clothes, phones, belongings,

medications, prescriptions (given her abuse of narcotic pain pills), purses,

suitcases, documents, diaries, etc." Haggard had stated to officers that Jamie had

driven Nolte's car the night before she disappeared and he believed she had been

in his truck since her disappearance. The trial court did not see any problems with

the particularity of the warrant because the items listed were related to the

suspected homicide.

      "A warrant is overbroad if it fails to describe with particularity items for which

probable cause exists to search." State v. Keodara, 191 Wn. App. 305, 312, 364

P.3d 777 (2015) (citing State v. Maddox, 116 Wn. App 796, 805, 67 P.3d 1135

(2003)). A warrant is not necessarily impermissibly broad solely because it lists

generic classifications. Id. at 313 (citing State v. Stenson, 132 Wn.2d 668, 692,

940 P.2d 1239(1997)). Washington courts have upheld such general descriptions

as "specific items plus any other evidence of the homicide... any and all evidence

of assault and rape included but not limited to . . . specified items," and "trace

evidence from the victim in the van." Clark, 143 Wn.2d at 754-55 (internal

quotation marks omitted) (quoting State v. Reid, 38 Wn. App. 203, 211-12, 687

P.2d 861 (1984); State v. Lingo, 32 Wn. App. 638, 640-42, 649 P.2d 130 (1982)).

However, "blanket inferences and generalities cannot substitute for the required

showing of'reasonably specific "underlying circumstances" that establish evidence

of illegal activity will likely be found in the place to be searched in any particular

case." Keodara, 191 Wn. App. at 313(quoting Thein, 138 Wn.2d at 133).




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No. 77426-3-1/14


       Here, although the warrant contains generic classifications of the items to

be searched and seized, it gives sufficient guidance to officers to prevent them

from "mak[ing] the search a 'general, exploratory rummaging in a person's

belongings." Clark, 143 Wn.2d at 755 (quoting Andresen v. Maryland, 427 U.S.

463,480,96 S. Ct. 2737,49 L. Ed. 2d 627(1976)). The listed items were all related

to the disappearance and suspected homicide of Jamie Haggard. The warrant

was not impermissibly broad.

              c. Reckless Omission

       Haggard argues that Det. Bartlett recklessly omitted from her affidavit the

fact that Nolte was in jail at the time of Jamie's disappearance, knowing "that the

court would draw unfair inferences as to the likelihood of [Nolte's] involvement in

criminal activity." The trial court concluded that Det. Bartlett did not recklessly omit

any relevant information from her affidavit.

       In order to invalidate the warrant on this basis, the defendant must show

evidence of a deliberate, material omission or statements made in reckless

disregard of the truth, rather than simply negligence or innocent mistake. Clark,

143 Wn.2d at 751. "A trial court's finding on whether an affiant deliberately

excluded material facts is a factual determination, upheld unless clearly

erroneous." j.çj. at 752 (citing State v. Cord, 103 Wn.2d 361, 367, 693 P.2d 81

(1985)). Therefore, although the court listed its finding that Det. Bartlett did not

recklessly omit any relevant information from her affidavit as a conclusion of law,

we review it as a factual determination.




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No. 77426-3-1/15


       Haggard contends that the affidavit "gives rise to a clear inference that her

disappearance may be linked to the jealous, assaultive boyfriend [Nolte]."

However, although Nolte is mentioned throughout the affidavit, the main focus of

the affidavit seems to be Haggard's statements and actions leading up to and

following Jamie's disappearance. Det. Bartlett's affidavit does not explicitly state

that Nolte was in jail when Jamie disappeared, but it does state that he was

arrested for domestic violence assault on June 8, 2016 and that Haggard filled in

the pond "while Nolte was incarcerated." These references indicate that the lack

of an explicit statement that Nolte was in jail when Jamie disappeared was more

likely negligence or an innocent mistake rather than a deliberate or reckless

omission. Haggard has not shown that Det. Bartlett deliberately excluded material

facts from her affidavit, and therefore the court's finding is not clearly erroneous.

          2. Scope of Warrant

       Next, Haggard argues that the law enforcement officers who executed the

warrant exceeded its scope by searching and seizing property unrelated to the

target of the search warrant. Haggard contends that moving a welder to locate its

serial number constituted a warrantless search and seizure because the warrant

did not authorize them to move the welder. The trial court found it "very clear" that

the serial number was in plain view because it was on the front of the welder and

exposed. Therefore, the court found that there was no warrantless search or

seizure of the welder when the serial number was in plain sight on the front of the

equipment. In its written findings, the court concluded that the welder was in plain

view in a common area of the house, and taking a picture of an object in plain view


                                        -15-
No. 77426-3-1/16


at a scene violates neither Article I, Section 4 of the Washington State Constitution

nor the Fourth Amendment to the United States Constitution. We review this

conclusion of law de novo. Gaines, 154 Wn.2d at 716.

       Detective Kathleen Decker testified at the CrR 3.6 hearing that she

participated in the search of the Kenmore house on July 15, 2016. She oversaw

the search-and-rescue personnel and took photographs of the scene. During the

search, she noticed a large metal arc welder located in the breezeway between

the residence and the garage. She was asked to photograph the welder and she

did so. She testified that, although the welder was moved slightly while being

photographed, she was able to see the front of the welder without moving it and

that the serial number was printed on the front of the welder. Det. Bartlett had told

her that the welder was suspected stolen property, and Det. Decker knew that the

purpose of photographing the welder was to document the serial number to

research whether it was stolen.

       Recording serial numbers that are in plain view does not constitute a search

or seizure. Arizona v. Hicks, 480 U.S. 321, 324-25, 107 S. Ct. 1149, 94 L. Ed. 2d

347 (1987). In Hicks, a police officer searching an apartment for evidence of a

shooting noticed expensive stereo equipment that seemed out of place in the

"squalid and otherwise ill-appointed four-room apartment." Id. at 323. He recorded

the serial numbers to check if the equipment was stolen, but had to move

components of the equipment to find the numbers. Id. The Courtfound that moving

suspected stolen property in order to locate the serial number constituted a search

that must be supported by authority of law. Id. at 324-25.


                                       - 16-
No. 77426-3-1/17


       Unlike the serial numbers on the equipment in Hicks, the serial number on

the welder was clearly visible before it was moved. Because the serial number

was in plain view, photographing that number did not constitute a separate search

or seizure. The trial court did not err in finding that recording this information did

not violate Haggard's constitutional rights.

          3. Statements of Carlee Chew and Jason Nolte

       Finally, Haggard argues that Carlee Chew and Jason Nolte's statements to

law enforcement officers when the warrants were executed should be excluded as

fruits of the poisonous tree. Because we have concluded that the warrant was

valid, Haggard has identified no basis to exclude these statements.

       Affirmed.




WE CONCUR:




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