 1        IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

 2 Opinion Number:
 3 Filing Date: September 10, 2015

 4 NO. 34,526

 5 STATE OF NEW MEXICO,

 6         Plaintiff-Petitioner,

 7 v.

 8 ERNEST PAANANEN,

 9         Defendant-Respondent.

10 ORIGINAL PROCEEDING ON CERTIORARI
11 Jacqueline D. Flores, District Judge


12   Hector H. Balderas, Attorney General
13   Nicole Beder, Assistant Attorney General
14   Jacqueline Rose Medina, Assistant Attorney General
15   Santa Fe, NM

16 for Petitioner


17 Jorge A. Alvarado, Chief Public Defender
18 B. Douglas Wood, III, Assistant Appellate Defender
19 Santa Fe, NM

20 for Respondent
 1                                       OPINION

 2 BOSSON, Justice.

 3   {1}   Over two decades ago, in Campos v. State, 1994-NMSC-012, ¶ 1, 117 N.M.

 4 155, 870 P.2d 117, this Court held that under our New Mexico Constitution a felony

 5 arrest must be preceded by an arrest warrant, even when supported by probable cause,

 6 unless exigent circumstances made securing a warrant impractical. Our opinion in

 7 Campos addressed a situation in which the authorities had ample time to obtain an

 8 arrest warrant and provided no good reason for failing to do so. In the present case,

 9 by contrast, police officers made their arrest at the scene of the crime, shoplifting,

10 without any prior opportunity to secure a warrant. In the course of our analysis, we

11 explain our reasons for differing from the decision reached by the Court of Appeals,

12 and reverse the opinion upholding the suppression of evidence below. We remand for

13 further proceedings.

14 BACKROUND

15   {2}   Surveillance cameras at Sportsman’s Warehouse in Albuquerque caught

16 Defendant Ernest Paananen placing two flashlights under his jacket and then leaving

17 the store without paying. Moments later, the store’s loss prevention team apprehended

18 Defendant and returned him to the store. The loss prevention team placed Defendant

19 in a back room, frisked him, and called the police. During the frisk, a loss prevention
 1 employee placed Defendant’s possessions on the table, along with the stolen

 2 flashlights. The employee did not go through Defendant’s backpack.

 3   {3}   Albuquerque Police Department Officers Cole Knight and Andrew Hsu arrived

 4 at the store, and Officer Knight immediately handcuffed Defendant. Officer Hsu

 5 searched Defendant’s backpack and found hypodermic needles. When questioned

 6 about the needles, Defendant admitted that he had tried to use drugs the day before

 7 but said he did not currently possess any drugs.

 8   {4}   While waiting for a copy of the surveillance video, Officer Knight searched

 9 through Defendant’s possessions on the table and found a cigarette pack. Officer

10 Knight looked in the cigarette pack and found a substance he believed to be heroin,

11 a hunch later confirmed by a field kit test. Along with shoplifting, the State charged

12 Defendant with possession of a controlled substance and possession of drug

13 paraphernalia.

14   {5}   Subsequently, Defendant sought to suppress all evidence seized at the store,

15 arguing that the officers had conducted an unreasonable, warrantless search in

16 violation of both the Fourth Amendment to the United States Constitution and Article

17 II, Section 10 of the New Mexico Constitution. In response, the State emphasized that

18 the officers had specific statutory authority in shoplifting cases to arrest Defendant


                                             2
 1 without a warrant. See NMSA 1978, Section 30-16-23 (1965) (“Any law enforcement

 2 officer may arrest without warrant any person [the officer] has probable cause for

 3 believing has committed the crime of shoplifting. . . .” (emphasis added)). The State

 4 then argued that because the arrest was valid, the officers conducted a lawful search

 5 of Defendant in the course of that arrest.

 6   {6}   At the suppression hearing, the State argued that the search 1) was incident to

 7 a valid arrest for shoplifting, and 2) was the result of inevitable discovery pursuant

 8 to that arrest. Unpersuaded, the district court suppressed all evidence seized,

 9 concluding that “the State ha[d] failed to establish that the search was conducted

10 pursuant to any exception to the warrant requirement . . . .” The State appealed the

11 suppression order to the Court of Appeals. See NMSA 1978, § 39-3-3(B)(2) (1972)

12 (“In any criminal proceeding in district court an appeal may be taken by the state to

13 the . . . court of appeals . . . within ten days from a[n] . . . order . . . suppressing or

14 excluding evidence. . . .”).

15 Court of Appeals opinion

16   {7}   The Court of Appeals affirmed the suppression, holding “that the [warrantless]

17 arrest of Defendant was not lawful under Article II, Section 10 of the New Mexico

18 Constitution.” State v. Paananen, 2014-NMCA-041, ¶ 2, 321 P.3d 945, cert. granted,


                                                3
 1 2014-NMCERT-003 (No. 34,526, Mar. 28, 2014). The Court acknowledged that a

 2 warrantless search may be conducted incident to a lawful arrest. Id. ¶ 17. The validity

 3 of the search, therefore, depended on the lawfulness of the arrest, and in this case

 4 Defendant was apprehended without an arrest warrant. To determine the validity of

 5 the warrantless arrest, the Court of Appeals focused heavily on Campos, 1994-

 6 NMSC-012, one of this Court’s first opinions interpreting Article II, Section 10 of the

 7 New Mexico Constitution distinctly from its federal counterpart, the Fourth

 8 Amendment to the United States Constitution.

 9   {8}   In Campos, this Court held that an arrest without a warrant was valid only if

10 both supported by probable cause and made under sufficient exigent circumstances.

11 1994-NMSC-012, ¶ 1. After determining that “Defendant presented no imminent

12 threat to escape or destroy evidence,” and that “the State made no showing of exigent

13 circumstances,” the Court of Appeals held that the arresting officers first needed a

14 warrant to arrest Defendant. Paananen, 2014-NMCA-041, ¶ 35-36. Only then could

15 they justify searching Defendant incident to a lawful arrest, despite the undisputed

16 presence of probable cause. See id. Accordingly, because the officers arrested

17 Defendant without an arrest warrant, the Court of Appeals held that the arrest and

18 subsequent search were unconstitutional and suppression of the evidence was


                                              4
 1 appropriate. Id.

 2   {9}    In resolving the case at bar, we consider both federal and state constitutional

 3 precedent, especially our opinion in Campos, because the lawfulness of Defendant’s

 4 warrantless arrest at Sportsman’s Warehouse—and the search incident

 5 thereto—hangs in the balance.

 6 DISCUSSION

 7   {10}   “Appellate review of a motion to suppress presents a mixed question of law and

 8 fact. We review factual determinations for substantial evidence and legal

 9 determinations de novo.” State v. Ketelson, 2011-NMSC-023, ¶ 9, 150 N.M. 137, 257

10 P.3d 957.

11 The State properly preserved the issue of a search incident to an arrest

12   {11}   Initially, we uphold the Court of Appeals’ decision that the State properly

13 preserved its theory of a search incident to an arrest. While the State initially argued

14 only that the search of Defendant was the result of an inevitable discovery, the State

15 clarified during the suppression hearing that it was also relying on an alternative

16 theory of search incident to arrest. We agree with the Court of Appeals that the State

17 sufficiently asserted the issue and adduced the evidence necessary to support the legal

18 principle. Defendant, moreover, had an opportunity to respond below. Thus, we are


                                               5
 1 satisfied that the issue was preserved for review on appeal. See Paananen, 2014-

 2 NMCA-041, ¶ 15.

 3 Reasonableness of a warrantless arrest under the Fourth Amendment

 4   {12}   To determine the constitutionality of Defendant’s arrest, under our interstitial

 5 approach to constitutional analysis, before looking to our New Mexico Constitution

 6 we first decide whether the arrest was lawful under the U.S. Constitution. State v.

 7 Gomez, 1997-NMSC-006, ¶ 19, 122 N.M. 777, 932 P.2d 1. Only if the federal

 8 constitution would not provide protection from the law enforcement activity under

 9 consideration, do we then turn to the civil liberties protected under Article II, Section

10 10 of the New Mexico Constitution. Gomez, 1997-NMSC-006, ¶ 19.

11   {13}   The Fourth Amendment guarantees that “[t]he right of the people to be secure

12 in their persons, houses, papers, and effects, against unreasonable searches and

13 seizures, shall not be violated . . . .” U.S. Const. amend. IV (emphasis added). “To

14 determine the constitutionality of a seizure we must balance the nature and quality of

15 the intrusion on the individual’s Fourth Amendment interests against the importance

16 of the governmental interests alleged to justify the intrusion.” Tennessee v. Garner,

17 471 U.S. 1, 8 (1985) (internal quotation marks, citation, and brackets omitted).

18   {14}   Almost 40 years ago, in United States v. Watson, 423 U.S. 411 (1976), the U.S.


                                                6
 1 Supreme Court squarely applied these principles to determine the constitutionality of

 2 a warrantless arrest supported by probable cause and explicit statutory authority,

 3 similar to the statutory authority to arrest in cases of shoplifting in New Mexico. See

 4 Section 30-16-23 (“Any law enforcement officer may arrest without warrant any

 5 person [the officer] has probable cause for believing has committed the crime of

 6 shoplifting. . . .” (emphasis added)). In Watson, a statute authorized postal service

 7 officers to “make arrests without warrant for felonies cognizable under the laws of the

 8 United States if they have reasonable grounds to believe that the person to be arrested

 9 has committed or is committing such a felony.” Id. at 415. Watson was suspected of

10 possessing stolen credit cards. Id. at 412. An informant notified the postal inspector,

11 and the inspector subsequently set up a sting operation to catch Watson in possession

12 of the stolen credit cards. Id. at 412-13. The informant notified the postal inspector

13 six days before the sting operation. Id. at 426 (Powell, J., concurring). Once Watson

14 arrived at the intended meeting, officers arrested him. Id. at 413. After receiving

15 permission to search Watson’s vehicle, officers discovered two stolen credit cards.

16 Id.

17   {15}   The main issue on appeal was whether the warrantless arrest violated the

18 Fourth Amendment. Watson, 423 U.S. at 412-14. The U.S. Court of Appeals for the


                                              7
 1 Ninth Circuit held that the arrest was not constitutional, despite the presence of

 2 probable cause, because no exigent circumstances justified the absence of an arrest

 3 warrant. Id. at 414. Notably, the postal inspector had probable cause for Watson’s

 4 arrest six days before the sting operation. Id. at 413-14. “The Government made no

 5 effort to show that circumstances precluded the obtaining of a warrant, relying instead

 6 for the validity of the arrest solely upon the showing of probable cause to believe that

 7 respondent had committed a felony.” Id. at 426 (Powell, J., concurring). Thus,

 8 according to the Ninth Circuit the postal inspector should have obtained an arrest

 9 warrant as he “concededly had time to do so.” Id. at 414.

10   {16}   The U.S. Supreme Court disagreed, determining that probable cause alone was

11 a sufficient basis for a warrantless felony arrest. In reaching that determination, the

12 Court considered the import of the statute that authorized the arrests and noted that

13 “there is a strong presumption of constitutionality due to an Act of Congress,

14 especially when it turns on what is reasonable.” Id. at 416 (internal quotation marks

15 and citation omitted). Additionally, the Court surveyed several prior cases in which

16 it had upheld the validity of warrantless arrests based solely on a determination that

17 such arrests were supported by probable cause. See, e.g., id. at 417 (concluding in its

18 discussion of Henry v. United States, 361 U.S. 98 (1959), that “[t]he necessary


                                              8
 1 inquiry, therefore, was not whether there was a warrant or whether there was time to

 2 get one, but whether there was probable cause for the arrest.”). The Court concluded

 3 that the statute and case law supported the constitutionality of a warrantless felony

 4 arrest as long as it was supported by probable cause. Watson, 423 U.S. at 416-24.

 5   {17}   In addition to statutory authority for a warrantless arrest, the U.S. Supreme

 6 Court looked to the common law standard “that a peace officer [is] permitted to arrest

 7 without a warrant for a misdemeanor or felony committed in his presence as well as

 8 for a felony not committed in his presence if there was reasonable ground [probable

 9 cause] for making the arrest.” Id. at 418. See also 3 Wayne R. LaFave, Search and

10 Seizure: A Treatise on the Fourth Amendment § 5.1(b), at 15 (5th ed. 2012) (citing

11 Draper v. United States, 358 U.S. 307 (1959), for the proposition that the

12 “‘reasonable grounds’ test . . . and the ‘probable cause’ requirement of the Fourth

13 Amendment ‘are substantial equivalents.’”). Moreover, “ ‘[t]he rule of the common

14 law, that a peace officer or a private citizen may arrest a felon without a warrant, has

15 been generally held by the courts of the several [s]tates to be in force in cases of

16 felony punishable by the civil tribunals.’ ” Id. at 419, quoting Kurtz v. Moffitt, 115

17 U.S. 487 (1885). Continuing, the Court observed that although it would be “wise” for

18 law enforcement officers to obtain an arrest warrant when it is “practicable to do so,”


                                              9
 1 Watson, 423 U.S. at 423, the Court declined to read that prudential consideration into

 2 the Fourth Amendment.

 3          [W]e decline to transform this judicial preference into a constitutional
 4          rule when the judgment of the Nation and Congress has for so long been
 5          to authorize warrantless public arrests on probable cause rather than to
 6          encumber criminal prosecutions with endless litigation with respect to
 7          the existence of exigent circumstances, whether it was practicable to get
 8          a warrant, whether the suspect was about to flee, and the like.

 9 Watson, 423 U.S. at 423-24.

10   {18}   Watson remains good law today. Accordingly, there is no doubt that the

11 warrantless arrest of Defendant did not violate his rights under the United States

12 Constitution. That, in turn, would make the subsequent search incident to that arrest

13 lawful as well, at least under the Fourth Amendment. See Chimel v. California, 395

14 U.S. 752, 762-63 (1969) (recognizing that “[w]hen an arrest is made, it is reasonable

15 for the arresting officer to search the person arrested”). Under our interstitial analysis

16 we now proceed to examine this case under Article II, Section 10 of the New Mexico

17 Constitution, and Campos in particular, to determine whether our New Mexico

18 Constitution would require a warrant where the federal constitution does not. See

19 Gomez, 1997-NMSC-006, ¶ 19.

20 Reasonableness of a warrantless arrest under Article II, Section 10 of the New
21 Mexico Constitution


                                               10
 1   {19}   In Campos, this Court held “that for a warrantless arrest to be reasonable the

 2 arresting officer must show that the officer had probable cause to believe that the

 3 person arrested had committed or was about to commit a felony and some exigency

 4 existed that precluded the officer from securing a warrant.” Campos, 1995-NMSC-

 5 012, ¶ 14. Tellingly, our opinion in Campos was directed squarely at Watson and

 6 expressly disavowed the Watson holding that a warrant was not required, even when

 7 officers had sufficient time and opportunity to obtain one.

 8   {20}   Similar to Watson, a state statute in Campos authorized officers to make a

 9 warrantless arrest of any individual based solely on probable cause that a suspect was

10 violating the Controlled Substances Act. Campos, 1994-NMSC-012, ¶ 4. The officer

11 received information from a confidential informant that Campos would be conducting

12 a drug transaction the next morning. Id. ¶ 2. “The informant told Officer Lara that

13 Campos would be driving either a silver and black pickup truck or a small blue car

14 down one of two routes to a location on East Deming Street in Roswell at about 8:00

15 a.m.” Id. This information was corroborated by evidence that “Officer Lara had been

16 investigating Campos for approximately one year, knew that Campos used vehicles

17 like those described by the informant, and believed that Campos engaged in illegal

18 drug activity.” Id. The informant had proven to be reliable and accurate on previous


                                              11
 1 occasions.

 2   {21}   In response, the officers set up a surveillance team. Id. ¶ 2. Officer Lara

 3 explained that he did not first secure an arrest warrant from a magistrate because he

 4 wanted to corroborate the information from the informant. The information provided

 5 to the officers proved to be accurate. When the defendant arrived at the transaction

 6 scene, he was arrested without a warrant. Id. ¶ 3. After a search of the defendant and

 7 his car, officers discovered heroin. Id.

 8   {22}   On certiorari review, this Court acknowledged the Watson rule that “a

 9 warrantless public arrest of a felon based on probable cause will be upheld regardless

10 of whether the officer could have secured an arrest warrant.” Campos, 1994-NMSC-

11 012, ¶ 9 (emphasis added). This Court then recognized that since New Mexico

12 strongly favors warrants, Article II, Section 10 of the New Mexico Constitution

13 provides greater protection than the Fourth Amendment. Campos, 1994-NMSC-012,

14 ¶ 10. Accordingly, this Court “[did] not assume that warrantless public arrests of

15 felons are constitutionally reasonable.” Id.

16   {23}   In its analysis of the constitutionality of the warrantless arrest, the Campos

17 Court pointed out, the crucial “inquiry in reviewing warrantless arrests [is] whether

18 it was reasonable for the officer not to procure an arrest warrant.” Id. ¶ 15. The Court


                                              12
 1 appears to have been strongly influenced by the factor of time. Given the early

 2 presence of probable cause and adequate opportunity to obtain a warrant prior to the

 3 arrest, the officers had no good reason not to get the warrant. Thus, because “Officer

 4 Lara had probable cause to obtain a warrant on December 7 for the arrest of Campos

 5 on December 8,” there were no “sufficient exigent circumstances to make the

 6 warrantless arrest of Campos reasonable.” Id. ¶¶ 16-17.

 7   {24}   In contrast, in the case at bar, time was not on the officers’ side. After they

 8 arrived at the arrest scene, the officers clearly developed probable cause to arrest

 9 Defendant based on their review of the video tape and the evidence of shoplifting

10 displayed on the table before them. Unlike either Campos or Watson, however, the

11 officers did not have this information or time to act on it prior to arriving on scene,

12 and thus could not have gotten an arrest warrant before responding to the call.

13   {25}   Given that it was not reasonably practical for the officers to obtain an arrest

14 warrant before responding to the scene, they faced three alternatives after arriving on

15 scene and gathering information amounting to probable cause. First, the officers

16 could arrest Defendant on scene, as they did. Second, the officers could have

17 continued to detain Defendant at the store while going to court to obtain the warrant,

18 an effort likely to have taken significant time, during which Defendant would have


                                              13
 1 remained under a de facto warrantless arrest at the store. See, e.g., State v. Werner,

 2 1994-NMSC-025, ¶ 16, 117 N.M. 315, 871 P.2d 971 (holding, after consideration of

 3 the “combination of the length of time of detention, the place of detention, and the

 4 restriction on Werner’s freedom of movement,” that a forty-five minute detention in

 5 a police car amounted to a de facto arrest). Finally, the officers could have released

 6 Defendant while they went to secure the warrant in the hope they could relocate and

 7 arrest him later, an expenditure of resources seemingly disproportionate to the crime

 8 of shoplifting and a risk our Legislature has declared unacceptable. See § 30-16-23

 9 (authorizing warrantless arrests of shoplifting with probable cause). In our view, the

10 officers chose the only reasonable approach, and the facts of this case provide a prime

11 example of an “exigency . . . that precluded the officer[s] from securing a warrant.”

12 See Campos, 1994-NMSC-012, ¶ 14.

13   {26}   The phrase “exigent circumstances” has been described in our jurisprudence

14 as including “an emergency situation requiring swift action to prevent imminent

15 danger to life or serious damage to property, or to forestall the imminent escape of a

16 suspect or destruction of evidence.” Campos, 1994-NMSC-012, ¶ 11 (quoting State

17 v. Copeland, 1986-NMCA-083, ¶ 14, 105 N.M. 27, 727 P.2d 1342). The Court of

18 Appeals appears to have relied upon this language in finding a lack of exigency when


                                             14
 1 it reviewed this case below. See Paananen, 2014-NMCA-041, ¶¶ 32-36. The quoted

 2 language, however, is not an exclusive list. As Campos provides—and we now

 3 hold—there are other situations in which an exigency not necessarily amounting to

 4 an imminent threat of danger, escape, or lost evidence will be sufficient to render

 5 reasonable a warrantless public arrest supported by probable cause under the totality

 6 of the circumstances. See Campos, 1994-NMSC-012, ¶ 14 (declaring that “exigency

 7 will be presumed” where an officer observes the commission of a felony, without

 8 reference to imminent danger, escape, or destruction of evidence). An on-the-scene

 9 arrest supported by probable cause will usually supply the requisite exigency.

10   {27}   We reiterate our holding in Campos that the overarching “inquiry in reviewing

11 warrantless arrests [is] whether it was reasonable for the officer not to procure an

12 arrest warrant,” and that a warrantless arrest supported by probable cause is

13 reasonable if “some exigency existed that precluded the officer from securing a

14 warrant.” Id. ¶ 14-15. Accordingly, when the police have ample time to obtain a

15 warrant before making an arrest, as was the case in Campos, our New Mexico

16 Constitution compels them to do so. See id. ¶ 15 (“We will not hesitate . . . to find a

17 warrantless arrest unreasonable if no exigencies existed to excuse the officer’s failure

18 to obtain a warrant.”). However, where as here sufficient exigent circumstances make


                                              15
 1 it not reasonably practicable to get a warrant, one is not required.

 2   {28}   That this was a misdemeanor arrest does not materially alter the analysis. We

 3 have previously held that exigent circumstances can justify a warrantless arrest for

 4 misdemeanor driving while intoxicated. See City of Santa Fe v. Martinez, 2010-

 5 NMSC-033, ¶¶ 14, 17, 148 N.M. 708, 242 P.3d 275 (evanescent nature of alcohol in

 6 the body presents sufficient exigent circumstances to justify warrantless arrest). More

 7 recently, we upheld a warrantless arrest for misdemeanor domestic battery as long as

 8 the officer apprehended the suspect reasonably close to the scene of the crime. See

 9 State v. Almanzar, 2014-NMSC-001, ¶ 2, 316 P.3d 183; NMSA 1978, § 31-1-7(A)

10 (1979, amended 1995) (“[A] peace officer may arrest a person and take that person

11 into custody without a warrant when the officer is at the scene of a domestic

12 disturbance and has probable cause.”). The same principle of probable cause plus

13 exigent circumstances justifies an arrest for misdemeanor shoplifting made at the

14 scene of the crime.

15 The search was reasonable because it was incident to a valid arrest

16   {29}   In New Mexico, a warrantless search is presumed unreasonable unless the

17 search fits within a judicially recognized exception to the warrant requirement. State

18 v. Rowell, 2008-NMSC-041, ¶ 10, 144 N.M. 371, 188 P.3d 95. “One of the most


                                              16
 1 firmly established exceptions to the warrant requirement is the right on the part of the

 2 government, always recognized under English and American law, to search the

 3 person of the accused when legally arrested.” Id. ¶ 13 (internal quotation marks and

 4 citations omitted). “Given the exigencies always inherent in taking an arrestee into

 5 custody, a search incident to arrest is a reasonable preventative measure to eliminate

 6 any possibility of the arrestee’s accessing weapons or evidence, without any

 7 requirement of a showing that an actual threat exists in a particular case.” Id. ¶ 25,

 8 n.1.

 9   {30}   Officer Knight testified at the suppression hearing that it is standard procedure

10 to search a suspect incident to an arrest to “make sure they don’t take contraband to

11 jail . . . .” Officer Knight explained that searches are performed thoroughly because

12 “[i]t’s been my experience that they can have little razor blades and such in their

13 property. We’re pretty thorough to make sure there’s no weapons first off.” Finally,

14 counsel for the State asked Officer Knight if opening up small containers was part of

15 the procedure to protect against small razor blades, to which Officer Knight

16 answered, “[a]bsolutely.”

17   {31}   Once Officer Knight placed Defendant in handcuffs, Defendant was deemed

18 under arrest. Pursuant to protocol, Officer Knight opened the cigarette package that


                                               17
 1 was sitting on the table and discovered heroin. This search, while performed without

 2 a warrant, was conducted incident to a valid arrest. Hence, the search fits within a

 3 judicially recognized exception to the warrant requirement and was reasonable.

 4 CONCLUSION

 5   {32}   Defendant’s arrest, though without a warrant, was reasonable under the New

 6 Mexico Constitution. The subsequent warrantless search of Defendant fits a judicially

 7 recognized exception to the warrant requirement and was therefore also

 8 constitutionally reasonable. Accordingly, we reverse the Court of Appeals and

 9 remand for further proceedings.

10   {33}   IT IS SO ORDERED.



11                                               ______________________________
12                                               RICHARD C. BOSSON, Justice

13 WE CONCUR:



14 ___________________________________
15 BARBARA J. VIGIL, Chief Justice




                                            18
1 ___________________________________
2 PETRA JIMENEZ MAES, Justice



3 ___________________________________
4 EDWARD L. CHÁVEZ, Justice



5 ___________________________________
6 CHARLES W. DANIELS, Justice




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