         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                   November 15, 2011 Session

     STATE OF TENNESSEE v. REBECCA DRAPER and J. C. DRAPER

                   Appeal from the Criminal Court for Morgan County
                     Nos. 9390A, 9390B     E. Eugene Eblen, Judge


                    No. E2011-01047-CCA-R3-CD - Filed May 24, 2012


The Defendants, Rebecca and J. C. Draper, were each indicted for one count of manufacture
of .5 grams or more of methamphetamine, a Class B felony, and one count of possession of
drug paraphernalia, a Class A misdemeanor.1 See Tenn. Code Ann. §§ 39-17-417(a)(1), -
425(a)(1). The Defendants filed a motion to suppress the evidence discovered as a result of
a search of their manufactured home and backyard. The trial court denied the Defendants’
motion. The Defendants then entered into a plea agreement with the State and reserved a
certified question of law for appellate review pursuant to Tennessee Rule of Criminal
Procedure 37(b)(2). Defendant Rebecca Draper pled nolo contendere to one count of
possession of drug paraphernalia and was sentenced to eleven months and twenty-nine days
on probation. Defendant J. C. Draper pled guilty to one count of promotion of
methamphetamine manufacture, a Class D felony, and was sentenced to three years on
probation. See Tenn. Code Ann. § 39-17-433. In this appeal, the Defendants contend that
the trial court erred by denying their motion to suppress the evidence against them.
Following our review, we reverse, vacate the judgments of the trial court, and dismiss the
charges.

     Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court are
                             Reversed and Dismissed.

D. K ELLY T HOMAS, JR., J., delivered the opinion of the court, in which J AMES C URWOOD
W ITT, J R. and C AMILLE R. M CM ULLEN, JJ., joined.

James W. Brooks, Jr., Wartburg, Tennessee, for the appellant, Rebecca Draper.



1
 Defendant Rebecca Draper was also indicted for one count of possession of a firearm with the intent to go
armed during the commission of a dangerous felony, a Class D felony. See Tenn. Code Ann. § 39-17-
1324(a).
C. Brad Neff, Jamestown, Tennessee, for the appellant, J. C. Draper.

Robert E. Cooper, Jr., Attorney General and Reporter; Nicholas W. Spangler, Assistant
Attorney General; Russell Johnson, District Attorney General; and Frank A. Harvey,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

                              FACTUAL BACKGROUND

       The charges against the Defendants arose from the March 21, 2007 search of their
property located off of Deer Lodge Highway in Morgan County, Tennessee. The
Defendants’ manufactured home was located at the end of a gravel driveway just off of Deer
Lodge Highway. Heavy brush and trees obscured the view of the manufactured home from
the road and prevented any view of the backyard from the road. Heavy brush also obscured
the view of the backyard from the end of the gravel driveway and the Defendants’ front door.
Additionally, the Defendants lived in a somewhat secluded area with no other residential
homes nearby on their side of the street.

        On March 21, 2007, Deputy Rick Hamby of the Morgan County Sheriff’s Department
was dispatched to the Defendants’ address because “the water company [had] call[ed] in
saying they had somebody stealing water.” Deputy Hamby testified that when he arrived at
the Defendants’ residence, he parked in their driveway. Three employees from the “water
company” were already there and showed Deputy Hamby “where the water meter used to be”
near the road. Deputy Hamby testified that “somebody had tapped into” the water line with
a “hose pipe.” The hose went past some large bushes in the Defendants’ front yard, through
their front yard, around the home, and into the Defendants’ backyard. Deputy Hamby
testified that he and one of the water company employees “walked right straight down that
hose line taking [] photos.”

        Deputy Hamby admitted that he made no attempt to knock on the Defendants’ front
door and see if they were home. Deputy Hamby was unsure if any of the water company
employees had gone to the Defendants’ front door. Deputy Hamby testified at the
preliminary hearing that as he continued to follow the hose, and as he rounded the corner of
the Defendants’ home and entered their backyard, “gas was spewing.” Deputy Hamby
elaborated that he “smelled gas” and thought it was coming from a pipe “sticking up under
the [back] porch, orange pipe with hoses coming off of it. Underneath the porch in the back
of the steps.” Deputy Hamby called the “gas company” and “walked up [to the back porch]
and beat on the back door” to alert the Defendants about the gas leak.



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       While Deputy Hamby was at the Defendants’ back door, he smelled “an odor”
consistent with the production of methamphetamine coming from an open window. Deputy
Hamby then contacted Deputy William Angel. Deputy Angel arrived at the residence and
went into the Defendants’ backyard. Deputies Angel and Hamby searched the backyard and
discovered a “burn pile” which contained items used in the manufacture of
methamphetamine. Deputy Angel then left the Defendants’ property to apply for a search
warrant. The pertinent part of Deputy Angel’s affidavit reads as follows:

                 I further make oath that on March 21, 2007, Deputy Ricky Hamby was
       dispatched . . . to assist Sunbright Utility Company in investigating an illegal
       water hookup. Deputy Hamby noticed an [odor] of natural gas at the residence
       and discovered that the gas line at the rear of the house was leaking. Hamby
       went to the back door to see if anyone was in the residence. A window wa[s]
       open beside the back door and from the window Hamby detected an odor that
       . . . is [consistent] with the production of methamphetamine. Deputy Hamby
       called for this affiant to come to the residence. Upon my arrival I went to the
       back of the residence and noticed the odor that . . . is [consistent] with the
       production of methamphetamine. While on said property we saw a burn pile
       behind the residence. In the burn pile I saw empty cans of [brake] clean[er]
       which had holes cut into the bottom of the cans, empty bottles of denatured
       alcohol and empty sudaphed (pseudo-ephedrine) package. Based on my
       training and experience I know that these items are used in the manufacture of
       methamphetamine.

        At the suppression hearing, Deputy Hamby admitted that the odor he smelled that day
was not actually natural gas. Instead, it was “[c]rude oil” from a well dug on the property.
Deputy Hamby also admitted that the smell came from “some ten to [fifteen] feet out in the
[back]yard.” Deputy Hamby further admitted that he had previously seen “no trespassing”
signs posted on the Defendants’ property. However, Deputy Hamby testified that he could
not recall if there were any “no trespassing” signs posted on March 21, 2007, but he stated
that there “could have been.”

        At the end of the suppression hearing, the trial court concluded “that there [were]
exigent circumstances and that the officer[] had the right to be where he was.” In its written
order denying the Defendants’ motion to suppress, the trial court stated that it found “that
exigent circumstances existed authorizing the entrance into the curtilage of the property by
officers which led to observations by them forming the basis for probable cause leading to
the issuance of the [s]earch [w]arrant.” The trial court also stated that the evidence of “the
garden hose running from the allegedly illegal water hook up to the rear of the
[D]efendants[’] residence would further justify entry leading to the evidence forming part of

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the probable cause for said [s]earch [w]arrant.” Beyond these statements, the trial court
made no specific findings of facts.

       As stated above, the Defendants each entered into plea agreements with the State and
reserved the following certified question of law:

       Whether the scope and extent of a search by Deputy Hamby of the curtilage of
       the [D]efendant[s]’ residence without a search warrant and solely for the
       purpose of investigating an alleged unauthorized water line tap violated
       [a]rticle I, [s]ection 7 of the Tennessee Constitution and the Fourth
       Amendment to the United States Constitution or falls within the exception
       created by exigent circumstances. During the search of the curtilage of
       Defendant[s], Deputy Hamby went to the rear of the residence and smelled
       natural gas leaking from a gas well line. The discovery of the natural gas leak
       purports to be the exigent circumstance. Deputy Hamby did not smell natural
       gas until he was clearly within the [curtilage] of the Defendant[s]’ property.

                                        ANALYSIS

       The Defendants contend that the trial court erred by denying their motion to suppress
the evidence discovered as a result of the search of their manufactured home and backyard.
The Defendants argue that their backyard was part of the curtilage of their home and
protected from warrantless entry and search. The Defendants further argue that the smell of
“gas” did not provide Deputy Hamby with an exigent circumstance to enter their backyard
because he did not smell the “gas” until he was already behind their home and in their
backyard. The Defendants conclude that Deputy Hamby’s actions constituted an
unreasonable search of the curtilage of their home because no other reason or exigent
circumstance existed to justify his entry into their backyard. The State responds that Deputy
Hamby did not need a warrant to enter the Defendants’ backyard because the Defendants did
not have a reasonable expectation of privacy in their backyard. The State also responds that
Deputy Hamby’s actions were “consistent with acceptable ‘knock and talk’ investigative
procedure.” The State further responds that, even if the Defendants had a reasonable
expectation of privacy in their backyard, the fact that Deputy Hamby smelled “gas” provided
an exigent circumstance to justify his actions.

                                   I. Standard of Review

       On appellate review of suppression issues, the prevailing party “is entitled to the
strongest legitimate view of the evidence adduced at the suppression hearing as well as all
reasonable and legitimate inferences that may be drawn from that evidence.” State v. Talley,

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307 S.W.3d 723, 729 (Tenn. 2010) (quoting State v. Odom, 928 S.W.2d 18, 23 (Tenn.
1996)). Questions about “the assessment of witness credibility, the weight and value of
evidence, and the resolution of evidentiary conflicts are entrusted to the trial court” as the
trier of fact. State v. Meeks, 262 S.W.3d 710, 722 (Tenn. 2008). When the trial court
“makes findings of fact in the course of ruling upon a motion to suppress, those findings are
binding on appeal unless the evidence in the record preponderates against them.” Id.
However, “when the trial court does not set forth its findings of fact upon the record of the
proceedings, the appellate court must decide where the preponderance of the evidence lies.”
State v. Bobby Killion, No. E2008-01350-CCA-R3-CD, 2009 WL 1748959, at *13 (Tenn.
Crim. App. June 22, 2009), perm. app. denied, (Tenn. Oct. 26, 2009) (citing Fields v. State,
40 S.W.3d 450, 457 n.5 (Tenn. 2001)). Here, the trial court failed to make any findings of
fact in the record beyond the two conclusory statements found in its order dismissing the
motion to suppress. Additionally, a trial court’s conclusions of law along with its application
of the law to the facts are reviewed de novo without any presumption of correctness. Meeks,
262 S.W.3d at 722.

        Both the federal and state constitutions offer protection from unreasonable searches
and seizures with the general rule being “that a warrantless search or seizure is presumed
unreasonable and any evidence discovered subject to suppression.” Talley, 307 S.W.3d at
729 (citing U.S. Const. amend. IV; Tenn. Const. art. I, § 7). As has often been repeated, “the
most basic constitutional rule in this area is that ‘searches conducted outside the judicial
process, without prior approval by judge or magistrate, are per se unreasonable under the
Fourth Amendment–subject to only a few specifically established and well delineated
exceptions.’” Coolidge v. New Hampshire, 403 U.S. 443, 454-55 (1971) (quoting Katz v.
United States, 389 U.S. 347, 357 (1967)); see also State v. Berrios, 235 S.W.3d 99, 104
(Tenn. 2007). Such exceptions to the warrant requirement include “searches incident to
arrest, plain view, exigent circumstances, and others, such as the consent to search.” Talley,
307 S.W.3d at 729. These constitutional protections “are designed to safeguard the privacy
and security of individuals against arbitrary invasions of government officials.” Id. (quoting
State v. Keith, 978 S.W.2d 861, 865 (Tenn. 1998)) (internal quotation marks omitted).
Therefore, “a trial court necessarily indulges the presumption that a warrantless search or
seizure is unreasonable, and the burden is on the State to demonstrate that one of the
exceptions to the warrant requirement applied at the time of the search or seizure.” Killion,
2009 WL 174859, at *14.

                                        II. Curtilage

      The Fourth Amendment and article I, section 7 entitle the curtilage of a home “to the
same constitutional protection against ground entry and seizure as the home.” State v. Prier,
725 S.W.2d 667, 671 (Tenn. 1987). Our supreme court has long defined the curtilage of a

                                              -5-
home as “the space of ground adjoining the dwelling house, used in connection therewith in
the conduct of family affairs and for carrying on domestic purposes.” Welch v. State, 289
S.W. 510, 511 (Tenn. 1926). More recently, our supreme court clarified that the curtilage
is “any area adjacent to a residence in which an individual can reasonably expect privacy.”
Talley, 307 S.W.3d at 729 (citing Oliver v. United States, 466 U.S. 170, 180 (1984)). For
almost half a century, the United States Supreme Court has declared that reasonableness is
the “touchstone of the Fourth Amendment.” Florida v. Jimeno, 500 U.S. 248, 250 (1991)
(citing Katz, 389 U.S. at 360). As such, “the presence or absence of a reasonable expectation
of privacy now informs in large measure the analysis of the extent of [the] curtilage.”
Killion, 2009 WL 174859, at *16.

        To that end, the United States Supreme Court has determined that “the task of
defining the extent of a home’s curtilage . . . should be resolved with particular reference”
to the following factors:

       the proximity of the area claimed to be the curtilage to the home, whether the
       area is included within an enclosure surrounding the home, the nature of the
       uses to which the area is put, and the steps taken by the resident to protect the
       area from observation by people passing by.

 United States v. Dunn, 480 U.S. 294, 301 (1987). These factors are not “a finely tuned”
mechanical formula that “yields a ‘correct’ answer to all extent-of-curtilage questions,” but
instead, they are “useful analytical tools” that “bear upon the centrally relevant
consideration–whether the area in question is so intimately tied to the home itself that it
should be placed under the home’s ‘umbrella’ of Fourth Amendment protection.” Id.

       In its brief, the State relies heavily upon the fact that the Defendants’ home and
backyard were not enclosed within a fence. This state’s courts have repeatedly held “that
police entry upon private, occupied, fenced land without a warrant and absent exigent
circumstances is unreasonable and that evidence obtained as a result of such a search must
be suppressed.” State v. Harris, 919 S.W.2d 619, 624 (Tenn. Crim. App. 1995). However,
the mere absence of a fence does not per se mean that the Defendants lacked a reasonable
expectation of privacy in their backyard. In support of its argument the State cites this
court’s opinion in State v. Bobby Killion, 2009 WL 1748959. In that opinion, this court
concluded that the defendant “did not enjoy the same expectations of privacy in his unfenced,
readily viewable back yard as he did in his home.” Id. at *17 (emphasis added). However,
the facts of this case are readily distinguishable from the facts in Killion. In that case, a
police officer testified that he could view the “backyard area” from the street and a group of
police officers were able to view the entire backyard from the parking lot of an apartment
complex behind the defendant’s home. Id. at *16-17. This court concluded that there was

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“no indicia” that the defendant “desired to shield the public from observing his back yard.”
Id. at *17. While the State asserts in its brief that the Defendants’ backyard was “readily
viewable,” it is obvious from the record that this is not the case.

        The evidence before us shows that the Defendants’ backyard was well protected “from
observation by people passing by.” The Defendants’ manufactured home was located in a
secluded area at the end of a gravel driveway. There were no other residences near the
Defendants’ home, and the view of the home from the nearby road was greatly obscured by
trees and heavy brush. The backyard was in no way viewable from the road. The
Defendants’ manufactured home was also flanked on both sides by heavy bushes and
overgrowth. There is no evidence in the record to suggest that the backyard was viewable
from the Defendants’ front yard or front door. The gravel driveway did not extend into the
backyard, and no paths or walkways led to the backyard. Additionally, Deputy Hamby
testified that he had previously seen “no trespassing” signs posted on the Defendants’
property. As such, this factor weighs in favor of the Defendants. We also note that the area
Deputy Hamby entered was only a few feet from the side and back of the home. Therefore,
the proximity of the area claimed to be the curtilage to the home also weighs in favor of the
Defendants. As noted above, there was no fence surrounding the backyard or the home;
therefore, this factor weighs against the Defendants. With respect to the nature of the uses
to which the area is put, the backyard contained steps leading to a back porch and a back
door. Photographs of the area showed a large amount of junk strewn across the area.
However, there was no testimony about any specific uses for this area beyond its proximity
to the home and the access to the home’s backdoor. As such, we conclude that this factor
neither weighs in favor nor against the Defendants. Based upon our review of the record and
the Dunn factors, we conclude that the area that Deputy Hamby entered into was a part of the
curtilage of the home and constitutionally protected from his warrantless entry.

                               III. Knock and Talk Procedure

        The State also argues that Deputy Hamby’s actions were “consistent with acceptable
‘knock and talk’ investigative procedure.” This court has previously recognized the validity
of the “knock and talk” procedure. State v. Cothran, 115 S.W.3d 513, 522 (Tenn. Crim. App.
2003). The procedure is considered to be a consensual encounter with the police and a means
for police officers “to request consent to search a residence.” Id. at 521. In explaining the
“knock and talk” procedure and the reasoning for it, this court has quoted with approval the
following:

       Absent express orders from the person in possession against any possible
       trespass, there is no rule of private or public conduct which makes it illegal per
       se, or a condemned invasion of the person’s right of privacy, for anyone openly

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       and peaceably, at high noon, to walk up the steps and knock on the front door
       of any man’s “castle” with the honest intent of asking questions of the
       occupant thereof-whether the questioner be a pollster, a salesman, or an officer
       of the law.

Id. (quoting United States v. Cormier, 220 F.3d 1103, 1109 (9th Cir. 2000)).

        Put another way, any “sidewalk, pathway or similar passageway leading from a public
sidewalk or roadway to the front door of a dwelling represents an implied invitation to the
general public to use the walkway for the purpose of pursuing legitimate social or business
interest with those who reside within the residence.” Harris, 919 S.W.2d at 623.
Accordingly, it “cannot be said a person has an expectation of privacy in the area in the front
of his residence which leads from the public way to the front door.” Id. (quoting State v.
Baker, 625 S.W.2d 724, 727 (Tenn. Crim. App. 1981)). Whatever an officer sees in this area
“is not protected by either the Fourth Amendment or the state constitution.” Id. at 624.
However, “[a]ny substantial and unreasonable departure from an area where the public is
impliedly invited exceeds the scope of the implied invitation and intrudes upon a
constitutionally protected expectation of privacy.” Id. (quoting State v. Seagull, 632 P.2d 44,
47 (Wash. 1981)) (internal quotation marks and brackets omitted). Therefore, “once an
officer has walked around the exterior of a dwelling . . ., the officer violates the mandate[s]
of the Fourth Amendment and [a]rticle I, [s]ection 7.” Id. Furthermore, the presence of a
“no trespassing” sign “evince[s] an actual subjective expectation of privacy and a revocation
of the ‘implied invitation’ of the front door.” State v. Monty Blackwell, No. E2009-00043-
CCA-R3-CD, 2010 WL 454864, at *7 (Tenn. Crim. App. Feb. 10, 2010).

        The “knock and talk” procedure does not justify Deputy Hamby’s incursion into the
curtilage of the Defendants’ home. Deputy Hamby was very clear in his testimony at the
suppression hearing that he did not approach the Defendants’ front door and made no attempt
to contact them at the front door. Deputy Hamby could not recall if any of the water
company employees attempted to contact the Defendants at their front door. Deputy Hamby
also could not recall whether there were any other cars in the driveway when he arrived.
Deputy Hamby testified that he bypassed the front door and simply followed the water hose
into the Defendants’ backyard. As such, Deputy Hamby left the area where the public was
impliedly invited, exceeded the scope of the implied invitation, and intruded upon a
constitutionally protected area. Furthermore, Deputy Hamby was aware that the Defendants’
had posted “no trespassing” signs on their property, effectively revoking the implied
invitation of the front door. Accordingly, we conclude that Deputy Hamby made no attempt
to institute a “knock and talk” procedure and that the procedure provides no justification for
his warrantless entry into the Defendants’ backyard.



                                              -8-
                                 IV. Exigent Circumstances

        The trial court denied the Defendants’s motion to suppress because it concluded that
there were exigent circumstances that justified Deputy Hamby’s actions. Exigent
circumstances “are those in which the urgent need for immediate action becomes too
compelling to impose upon governmental actors the attendant delay that accompanies
obtaining a warrant.” State v. Meeks, 262 S.W.3d 710, 723. Put another way, exigent
circumstances arise when “the needs of law enforcement are so compelling that the
warrantless search is objectively reasonable under the Fourth Amendment.” Id. (quoting
Brigham City, Utah v. Stuart, 547 U.S. 398, 403 (2006)) (internal quotation marks and
brackets omitted). Exigent circumstances exist only when “the State has shown that the
search was imperative.” Id. Exigent circumstances frequently arise in the following
situations: “(1) hot-pursuit, (2) to thwart escape, (3) to prevent the imminent destruction of
evidence, (4) in response to an immediate risk of serious harm to the police officers or others,
and (5) to render emergency aid to an injured person or to protect a person from imminent
injury.” Id.

        In determining the constitutionality of a warrantless search, “the inquiry is whether
the circumstances give rise to an objectively reasonable belief that there was a compelling
need to act and insufficient time to obtain a warrant.” Meeks, 262 S.W.3d at 723. “The
exigency of the circumstances is evaluated based upon the totality of the circumstances
known to the governmental actor at the time of the entry.” Id. (emphasis added). The State
“must rely upon specific and articulable facts and the reasonable inferences drawn from
them” rather than on mere speculation. Id. at 723-24. Additionally, the “manner and the
scope of the search must be reasonably attuned to the exigent circumstances that justified the
warrantless search, or the search will exceed the bounds authorized by exigency alone.” Id.
at 724. When the asserted exigency is risk to the safety of the officers or others, “the
governmental actors must have an objectively reasonable basis for concluding that there is
an immediate need to act to protect themselves and others from serious harm.” Id.

       Deputy Hamby’s testimony at the suppression hearing was clear that he did not smell
anything until he had already entered the Defendants’ curtilage and was in their backyard.
In essence, Deputy Hamby created the exigency by entering into the Defendants’ backyard.
Such police-created exigent circumstances cannot be used to justify a warrantless entry into
a constitutionally protected area. State v. Carter, 160 S.W.3d 526, 532 (Tenn. 2005). All
Deputy Hamby knew prior to his entry into the Defendants’ curtilage was that there was a
water hose running from the water line to the back of the Defendants’ home. Furthermore,
Deputy Hamby admitted at the suppression hearing that he had not actually smelled natural
gas. In the affidavit in support of the search warrant and at the preliminary hearing, Deputy
Hamby stated that he smelled natural gas “spewing” from an open pipe beneath the

                                              -9-
Defendants’ back porch. However, Deputy Hamby admitted at the suppression hearing that
he actually smelled crude oil coming from a well ten to fifteen feet behind the Defendants’
home. Based upon the foregoing, we conclude that Deputy Hamby’s false claim that he
smelled natural gas while in the Defendants’ backyard could not retroactively provide him
with an exigent circumstance to enter the Defendants’ backyard.

        The trial court also concluded that the fact that there was a water hose running from
the water line to the Defendants’ backyard provided Deputy Hamby with a justification for
entering the backyard without a warrant. As our supreme court has previously stated, “[e]ven
though a felony has been committed and officers have probable cause to believe that they
will locate incriminating evidence inside a residence, a warrantless entry to search for
contraband or weapons is unconstitutional absent exigent circumstances.” Carter, 160
S.W.3d at 531 (citing Payton v. New York, 445 U.S. 573, 587-88 (1980)). The United States
Supreme Court has held that “an important factor to be considered when determining whether
any exigency exists is the gravity of the underlying offense.” Welsh v. Wisconsin, 466 U.S.
740, 753 (1984). Furthermore, “application of the exigent-circumstances exception in the
context of a home entry should rarely be sanctioned when there is probable cause to believe
that only a minor offense . . . has been committed.” Id. While the water hose was evidence
that an offense was being committed, it was a relatively minor offense. Nothing in the record
suggests that the water hose caused an urgent need for immediate action which would have
required Deputy Hamby to enter the backyard without a warrant. As such, we conclude that
the water hose did not provide Deputy Hamby with an exigent circumstance to justify his
warrantless entry into the curtilage of the Defendants’ home.

                                       CONCLUSION

       In consideration of the foregoing and the record as a whole, we conclude that the trial
court erred in denying the Defendants’ motion to suppress the evidence against them and we
reverse, vacate the judgments of the trial court, and dismiss the charges.




                                                    ________________________________
                                                    D. KELLY THOMAS, JR., JUDGE




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