                             IN THE
             ARIZONA COURT OF APPEALS
                          DIVISION TWO


                     THE STATE OF ARIZONA,
                            Appellee,

                                v.

                   FRANCISCO FLORES HUEZ JR.,
                           Appellant.

                     No. 2 CA-CR 2015-0381
                      Filed August 12, 2016


         Appeal from the Superior Court in Pima County
                      No. CR20151278001
           The Honorable Javier Chon-Lopez, Judge

                          REMANDED


                            COUNSEL

Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By Mariette S. Ambri, Assistant Attorney General, Tucson
Counsel for Appellee

Steven R. Sonenberg, Pima County Public Defender
By David J. Euchner, Assistant Public Defender, Tucson
Counsel for Appellant
                          STATE v. HUEZ
                         Opinion of the Court


                              OPINION

Presiding Judge Howard authored the opinion of the Court, in
which Judge Espinosa and Judge Staring concurred.


H O W A R D, Presiding Judge:

¶1          After a jury trial, Francisco Florez Huez Jr. was
convicted of possession of marijuana and sentenced to a nine-month
prison term. He challenges the trial court’s denial of his motion to
suppress evidence, arguing the officer did not have reasonable
suspicion to effectuate the investigatory stop which resulted in the
discovery of marijuana. Because the court erred, we remand for
further proceedings consistent with this opinion.

                Factual and Procedural Background

¶2             “In analyzing a ruling on a motion to suppress, we
consider ‘only the evidence presented at the suppression hearing,’”
State v. Hummons, 227 Ariz. 78, ¶ 2, 253 P.3d 275, 276 (2011), quoting
State v. Garcia, 224 Ariz. 1, ¶ 6, 226 P.3d 370, 376 (2010), and “[w]e
view the facts in the light most favorable to support the trial court’s
ruling on the motion to suppress,” id., quoting State v. Cook, 115 Ariz.
188, 192, 564 P.2d 877, 881 (1977). In March 2015, a Tucson Police
Department (TPD) officer saw Huez riding his bicycle on a raised
dirt area adjacent to a roadway in Tucson. The officer stopped Huez
because he suspected Huez was violating the law by riding his
bicycle on the sidewalk as well as on the left side of a roadway, in
violation of A.R.S. § 28-815, and Tucson City Code (“the Code”) § 5-2
(1953); see also A.R.S. § 28-812. During the ensuing investigation, the
officer discovered Huez had outstanding warrants and arrested him.
Another officer, who arrived sometime during the stop, conducted a
search incident to arrest which produced the evidence that Huez
attempted to suppress below.




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                          STATE v. HUEZ
                         Opinion of the Court

                         Legality of the Stop

¶3            Huez first argues the trial court erred by denying his
motion to suppress on the ground that the officer lacked reasonable
suspicion for the stop because Huez’s conduct could not constitute a
traffic violation. “We review a denial of a motion to suppress for an
abuse of discretion, but review constitutional issues de novo.” State
v. Salcido, 238 Ariz. 461, ¶ 6, 362 P.3d 508, 511 (App. 2015), quoting
State v. Gonzalez, 235 Ariz. 212, ¶ 7, 330 P.3d 969, 971 (App. 2014).
“Interpretation of a statute is a question of law, which we review
de novo.” Id., quoting State v. Starr, 222 Ariz. 65, ¶ 14, 213 P.3d 214,
218 (App. 2009).

¶4           “A traffic stop must be based on an officer’s articulable,
reasonable suspicion that the person has committed a traffic
violation.” Id. ¶ 7. Huez was cited for a violation of § 28-815(A),
which reads: “A person riding a bicycle on a roadway at less than
the normal speed of traffic at the time and place and under the
conditions then existing shall ride as close as practicable to the right-
hand curb or edge of the roadway.” Huez could only be cited for
such a violation if he was riding his bicycle on “a roadway.” Id. A
“[r]oadway” is defined as “that portion of a highway that is
improved, designed or ordinarily used for vehicular travel,
exclusive of the berm or shoulder.” A.R.S. § 28-601(22).

¶5            The undisputed facts establish conclusively that Huez
was not riding his bicycle on a roadway. At the suppression
hearing, the TPD officer explained that when he first saw him, Huez
was traveling east in the “sidewalk area up off the road.” The officer
clarified that there was no actual sidewalk, but that Huez was riding
in the area “where a sidewalk would be if there was one.” The
officer further testified that Huez was riding “over the curb in the
dirt area.” The officer’s citation of Huez was based on his
understanding that Huez had “to be going with the flow of traffic.”
It is clear that Huez was not “on a roadway” for the purposes of
§ 28-815(A). Thus, the officer could not have had a reasonable
suspicion that Huez was riding on the wrong half of a roadway.

¶6       The officer also claimed he reasonably suspected that
Huez was violating a traffic law by riding his bicycle “on the


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                          STATE v. HUEZ
                         Opinion of the Court

sidewalk area.” Section 5-2 states: “It shall be unlawful to ride a
bicycle on any public sidewalks, or upon a designated pedestrian
path in any public park, unless signs are posted specifically
permitting bicycling.” A separate section of the Code defines a
“[s]idewalk” as “that portion of a street between the curbs, or lateral
lines of a roadway, and the adjacent property lines, [that] is
improved for the use of pedestrians.”1 Tucson City Code § 20-1(27).

¶7           The phrase “improved for the use of pedestrians,” is not
specifically defined in the Code.             But the Code defines
“[u]nimproved pedestrian area” as “that portion of a street between
the curbs, or the lateral lines of a roadway, and the adjacent property
lines, which is not improved with a sidewalk, is not landscaped, and
is physically capable of continuous pedestrian use.” § 20-1(33).
Thus, a sidewalk must be an area that has been improved beyond
being a simple path.

¶8            The area where the officer stopped Huez was not a
sidewalk. The officer specifically testified “[t]here [was] no actual
sidewalk” in the area where Huez was riding his bicycle, although
that area is “where a sidewalk would be if there was one there.” The
officer described the area where he stopped Huez as “over the curb
in the dirt area.” The exhibits show the area was a strip of dirt or
gravel that ran parallel to the roadway between the curb and the
property line that was not “improved” in any noticeable way.
See § 20-1(27). It was an “[u]nimproved pedestrian area,” and not a
sidewalk. § 20-1(27), (33). Therefore, the officer did not articulate
any facts showing that Huez was riding his bike on the sidewalk as
defined in the Code.




      1Section  28-601(24), A.R.S., also defines “[s]idewalk” as “that
portion of a street that is between the curb lines or the lateral lines of
a roadway and the adjacent property lines and that is intended for
the use of pedestrians.” Because the Arizona Revised Statutes do
not prohibit the operation of bicycles on the sidewalk, we apply the
definition from the Tucson Code in determining whether a violation
occurred here.


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                          STATE v. HUEZ
                         Opinion of the Court

¶9          Huez was not riding the wrong way on a roadway or
riding on a sidewalk. 2 Accordingly, the officer was unable to
provide any reasonable, objective facts to support reasonable
suspicion that Huez was committing a traffic violation at the time of
the stop.

¶10           The state contends that the officer could have
reasonably suspected that Huez had committed a traffic violation
just prior to the stop, or that Huez was about to commit a traffic
violation. In particular, the state suggests that, because Huez was
riding on the unpaved portion of sidewalk between two paved
portions, it was reasonable for the officer to suspect Huez either

              had been riding on the mostly continuously
              paved sidewalk all along and would
              continue to do so as he proceeded
              eastward, or . . . [he] had been properly
              riding with eastbound traffic, but, upon
              seeing the construction, had cut across
              multiple lanes of traffic and proceeded on
              the wrong side of the road to avoid the
              hassle.

But the officer only witnessed Huez riding his bicycle on the dirt
path, which, as we note above, constituted completely lawful
behavior.

¶11           Moreover, the evidence shows Huez could have
accessed the area where he was stopped from different, legal access
points, including an adjacent parking lot, or could have walked his
bike on the sidewalk area, or could have turned on a side street
before reaching the other sidewalk area. Thus, in order to have
reasonable suspicion under this “alternative-scenario” theory, the
officer would have had to infer an entire narrative of events based
solely on Huez’s presence on a dirt path. This narrative would be
little more than a “hunch,” State v. Evans, 237 Ariz. 231, ¶ 8, 349 P.3d


      2 The state conceded at oral argument that Huez was not
engaging in any illegal behavior at the time of the stop.


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                           STATE v. HUEZ
                          Opinion of the Court

205, 208 (2015), quoting Terry v. Ohio, 392 U.S. 1, 27 (1968), that lacks
“a particularized and objective basis,” id., quoting United States v.
Cortez, 449 U.S. 411, 417 (1981), relying as it does on speculation
about Huez’s previous or future behavior. “If all the circumstances
[surrounding a traffic stop] taken together . . . describe behavior that
is entirely ordinary, then that behavior cannot reasonably give rise
to particularized suspicion.” Id. ¶ 12. In this case, the circumstances
surrounding the traffic stop—operation of a bicycle in a legal
manner with nothing more than speculation that Huez had
previously broken a traffic law—describe entirely ordinary and
common behavior.

¶12          At oral argument, the state correctly contended that,
under Terry v. Ohio, 392 U.S. 1 (1968),3 reasonable suspicion can be
generated from observing completely legal behavior. In Terry, the
United States Supreme Court stated that “a series of acts, each of
them perhaps innocent,” could, when “taken together” justify
reasonable suspicion. 392 U.S. at 22. The facts of that case are
instructive. The officer there observed two men standing on a street
corner. Id. at 5. He “took up a post of observation” and observed
the men walking and conferring in an unusual manner, in particular
walking back and forth from a single store window. Id. at 5-6. The
two men “repeated this ritual alternately between five and six times
apiece—in all, roughly a dozen trips” over the course of ten to
twelve minutes. Id. at 6. At this point, the officer had developed a
suspicion that they were “casing a job” and made an investigatory
stop. Id. at 6-7. The Court found that this set of observations


      3The  state also cited State v. Box, 205 Ariz. 492, ¶ 8, 73 P.3d 623,
626 (App. 2003), abrogated on other grounds by Rodriguez v. United
States, ___ U.S. ___, ___, 135 S. Ct. 1609, 1615-16 (2015), for the
proposition that a police officer need not personally observe a traffic
violation. The court in Box construed two statutes, A.R.S. §§ 28-1594
and 13-3883, to suggest that officers are permitted “to stop a vehicle
and detain the driver for an actual or suspected traffic violation not
committed in that officer’s presence but observed and reported by
another officer.” Id. ¶¶ 8-12, 73 P.3d at 626-27. That is not the case
here and Box is inapposite to our analysis.


                                    6
                         STATE v. HUEZ
                        Opinion of the Court

warranted reasonable suspicion that justified a brief stop and frisk
for the purpose of “protect[ing] himself and others from possible
danger.” Id. at 28.

¶13           The facts of this case are distinguishable from Terry.
The officer testified at the suppression hearing that he saw Huez
riding his bicycle and then conducted a traffic stop. He did not
engage in additional observation as the officer in Terry had and did
not observe additional actions which were suggestive of illegal
behavior. The officer briefly witnessed legal behavior that did not
suggest the contemplation of criminal conduct, as was the case in
Terry, and then proceeded to conduct an investigatory stop without
more. The officer’s observations in this case do not provide any
basis to separate completely innocent behavior from suspicious
behavior under the Fourth Amendment. See State v. Teagle, 217 Ariz.
17, ¶ 25, 170 P.3d 266, 273 (App. 2007) (“[C]ircumstances that
‘describe a very large category of presumably innocent travelers’ are
insufficient to establish reasonable suspicion because travelers
would then be subject to ‘virtually random seizures.’”), quoting Reid
v. Georgia, 448 U.S. 438, 441 (1980).

¶14         The state has not provided any reason why the legal
behavior was suggestive of previous illegal behavior, other than the
impermissible speculation that Huez might not have behaved in
conformity with the law before the officer saw him. Therefore, the
officer did not have a particularized suspicion that Huez had
committed a traffic violation, but instead must have generally
suspected Huez had been engaged in criminal activity. The stop
was thus not based on reasonable suspicion.

               Reasonable Mistake (Heien) Analysis

¶15          Huez additionally argues the trial court erred in finding
reasonable suspicion, to the extent it relied on Heien v. North
Carolina, ___ U.S. ___, 135 S. Ct. 530 (2014). In denying the motion to
suppress, the court found

            that because of the current state of the law
            the motion to suppress should be denied
            because the Court finds it was objectively


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                          STATE v. HUEZ
                         Opinion of the Court

             reasonable to suspect that . . . Huez might
             have been violating the riding on the
             sidewalk statute and/or the [riding on the
             wrong side of the roadway statute].

The court appears to have relied on Heien for the proposition that
reasonable suspicion can be founded on a mistake of law where that
mistake “was an objectively reasonable one.” See Heien, ___ U.S. at
___, 135 S. Ct. at 536. We review a ruling on a motion to suppress
for an abuse of discretion, and “an error of law is an abuse of
discretion.” State v. Stoll, 239 Ariz. 292, ¶ 13, 370 P.3d 1130, 1134
(App. 2016).

¶16           In Heien, the United States Supreme Court held that
reasonable suspicion can be based on an objectively reasonable
mistake of law. ___ U.S. at ___, 135 S. Ct. at 536. In determining
whether the mistake of law is objectively reasonable, a court should
not consider the “subjective understanding of the particular officer
involved.” Id. at 539. And a court will only find an objectively
reasonable mistake of law where “the statute the officer interpreted
mistakenly ‘is genuinely ambiguous, such that overturning the
officer’s judgment requires hard interpretive work.’” Stoll, 239 Ariz.
292, ¶ 15, 370 P.3d at 1134, quoting Heien, ___ U.S. at ___, 135 S. Ct. at
541 (Kagan, J., concurring). Reasonable suspicion can only be based
on mistakes of law “when the law at issue is ‘so doubtful in
construction’ that a reasonable judge could agree with the officer’s
view.” Heien, ___ U.S. at ___, 135 S. Ct. at 541 (Kagan, J.,
concurring), quoting The Friendship, 9 F. Cas. 825, 826 (C.C.D. Mass.
1812).

¶17          Here, the state appears to concede that the Code is
unambiguous. In our review of the Code, as detailed above, we find
no ambiguity in the definition of sidewalk contained therein. The
Code specifically defines sidewalk as the area between the road and
the adjacent property lines that is “improved for the use of
pedestrians.” § 20-1(27). The officer testified and the trial court
found the location of the stop was not paved or improved. Thus, the
officer made an unreasonable mistake of law by construing Huez’s
location as a sidewalk. See Stoll, 239 Ariz. 292, ¶ 15, 370 P.3d at 1134.



                                    8
                          STATE v. HUEZ
                         Opinion of the Court

¶18           As to § 28-815, the state argues that, to the extent this
court construes statutes to “allow bicyclists . . . to simply proceed on
the wrong side of the road when confronted by construction zones,”
then that interpretation is “a reasonably debatable matter under
[the] rules of statutory construction.” But, as discussed above, Huez
was not operating his bicycle on a roadway as defined by § 28-
601(22). The state does not argue that the definition of roadway is
ambiguous in any way. Thus, because Huez was not operating his
bicycle on a roadway, and that definition is unambiguous, the officer
made an unreasonable mistake of law in concluding that Huez was
riding his bicycle the wrong way on a roadway; the presence of
construction is inapposite to our analysis. Therefore, to the extent
the trial court relied on Heien in denying the motion to suppress, it
abused its discretion. See Stoll, 239 Ariz. 292, ¶ 13, 370 P.3d at 1134.

                       Brown/Strieff Analysis

¶19           Finally, the state argues that, even if the stop was
unlawful and was not based on a reasonable mistake of law, the
discovery of narcotics was too far attenuated from the unlawfulness
of the stop to justify exclusion. Huez responds, in part, by claiming
the state waived this argument by not raising it below. But he cites
two cases in which the state was the appellant. State v. Brita, 158
Ariz. 121, 122, 761 P.2d 1025, 1026 (1988); State v. Carlson, 228 Ariz.
343, ¶ 1, 266 P.3d 369, 370 (App. 2011). Here, the state was
successful at trial and Huez is the appellant. “We are required to
affirm a trial court’s ruling if legally correct for any reason and, in
doing so, we may address the state’s arguments to uphold the
court’s ruling even if those arguments otherwise could be deemed
waived by the state’s failure to argue them below.” State v.
Boteo-Flores, 230 Ariz. 551, ¶ 7, 288 P.3d 111, 113 (App. 2012). Thus,
we will review the state’s attenuation claim.

¶20         “In [Brown v. Illinois, 422 U.S. 590, 603-04 (1975)] the
[United States] Supreme Court applied three factors to determine
whether the taint of illegal conduct is sufficiently attenuated from a
subsequent search to avoid the exclusionary rule.”             State v.
Hummons, 227 Ariz. 78, ¶ 9, 253 P.3d 275, 277 (2011). In this context,
a court should consider: 1) the time elapsed between the unlawful
police conduct and the “acquisition of the evidence,” 2) “the

                                   9
                          STATE v. HUEZ
                         Opinion of the Court

presence of intervening circumstances,” and 3) “the purpose and
flagrancy of the official misconduct.” Id.

¶21          A search based on the discovery of an arrest warrant
following an allegedly unlawful detention can be too far attenuated
from the unlawful conduct to justify exclusion. Id. ¶¶ 10-15, 17.
“[I]n determining whether the evidence was impermissibly tainted,
we review for legal error,” but “are deferential to the trial court’s
factual findings because that court has ‘an opportunity to see the
parties, lawyers and witnesses.’” State v. Monge, 173 Ariz. 279, 281,
842 P.2d 1292, 1294 (1992), quoting State v. Chapple, 135 Ariz. 281, 297
n.18, 660 P.2d 1208, 1224 n.18 (1983).

¶22           The first factor requires a court to examine the length of
time between the unlawful conduct and the discovery of evidence;
shorter times suggest the evidence should be suppressed. Hummons,
227 Ariz. 78, ¶ 10, 253 P.3d at 278. This is, however, the least
important Brown factor because “‘in essentially every case,’ the time
between an illegal stop and the discovery of evidence is short.” Id.,
quoting McBath v. State, 108 P.3d 241, 248 (Alaska Ct. App. 2005). In
this case, the time between the unlawful detention and the discovery
of the evidence appears to have been relatively short. The officer
stopped Huez, conducted a warrant search, placed him under arrest,
and a second officer at the scene effectuated a search of his
belongings that produced the incriminating evidence. Although the
officer did not provide exact times, the flow of events was
uninterrupted and the discovery must have followed the unlawful
detention fairly quickly. This factor weighs in favor of exclusion.

¶23           The second factor requires a court to consider whether
any intervening circumstances occurred that would “provide[] a
legal basis for the [search or] arrest notwithstanding an illegal
seizure.” Id. ¶ 11. “A law enforcement officer who previously
lacked even reasonable suspicion, by discovering a valid warrant,
gains probable cause not just to detain, but to arrest.” Id. The
existence of a valid warrant does not, however, “dissipate[] the taint
of illegality,” because to hold otherwise would allow police to
“routinely illegally seiz[e] individuals, knowing that the subsequent
discovery of a warrant would provide after-the-fact justification for
illegal conduct.” Id. ¶ 13. But once an officer discovers a warrant

                                  10
                           STATE v. HUEZ
                          Opinion of the Court

during an investigation, that officer has an obligation to make an
arrest, and the resulting arrest is thus “a ministerial act that [is]
independently compelled by the pre-existing warrant.” Utah v.
Strieff, ___ U.S. ___, ___, 136 S. Ct. 2056, 2063 (2016).

¶24          Here, the warrant for Huez’s arrest obligated the officer
to effectuate an arrest. Thus, although the initial detention was
unlawful, the officer had probable cause for the arrest, and therefore
“it was undisputedly lawful to search [Huez] as an incident of his
arrest to protect [officer] safety.” Id.; see also Arizona v. Gant, 556 U.S.
332, 339 (2009). This factor weighs against exclusion.

¶25          Finally, we turn to the third Brown factor: the “purpose
and flagrancy of illegal conduct.” Hummons, 227 Ariz. 78, ¶ 14,
253 P.3d at 278. The “culpability of the law enforcement conduct,”
id., quoting Herring v. United States, 555 U.S. 135, 143 (2009), is
“‘particularly’ important in [an] attenuation analysis,” id., quoting
Brown, 422 U.S. at 604. While reviewing this factor, “[c]ourts must
consider the totality of circumstances in determining whether the
evidence should be suppressed.” Id. The court should consider,
among other things, “an officer’s regular practices and routines, an
officer’s reason for initiating the encounter, the clarity of the law
forbidding the illegal conduct, and the objective appearance of
consent.” Id. Evidence should not be suppressed when police
misconduct is “at most negligent,” such as an officer conducting a
“‘negligibly burdensome precautio[n]’ for officer safety.” Id., quoting
Rodriguez v. United States, ___ U.S. ___, ___, 135 S. Ct. 1609, 1616
(2015). Thus, this analysis is more subjective than the Heien analysis.

¶26            Here, based on the available record, the officer’s
conduct was not purposeful or flagrant. On cross-examination, the
officer testified that he was patrolling as part of his assignment to a
“Stone Garden Grant.” He explained that this assignment required
him to “conduct onsite investigations” in a “high crime area,” which
largely consisted of “find[ing] warrants and narcotics.”

¶27          No evidence was presented suggesting the officer in
this case was engaged in a “systemic or recurrent” pattern of
initiating unlawful traffic stops. Strieff, ___ U.S. at ___, 136 S. Ct. at
2063. Nor did his testimony show he “routinely approaches citizens


                                    11
                          STATE v. HUEZ
                         Opinion of the Court

in the hopes of discovering warrants in order to search them
incident to arrest.” Hummons, 227 Ariz. 78, ¶ 15, 253 P.3d at 279.
Indeed, in denying the motion to suppress, the trial court noted the
officer’s conduct was “objectively reasonable.” We defer to this
finding. See Monge, 173 Ariz. at 281, 842 P.2d at 1294. As in Strieff,
the police conduct here was “at most negligent.” Strieff, ___ U.S. at
___, 136 S. Ct. at 2063. Consequently, we find that the officer’s
conduct was not purposeful or flagrant. This factor conclusively
weighs against exclusion. On this record, we find the discovery of
the at-issue evidence was too attenuated from the unlawful stop to
justify exclusion.

¶28          But, here, the state did not argue attenuation at the
suppression hearing. As a result, the parties presented a limited
amount of evidence as to the “officer’s regular practices and
routines” and the “officer’s reason for initiating the encounter.”
Hummons, 227 Ariz. 78, ¶ 14, 253 P.3d at 279. And the trial court did
not make any express factual findings or legal conclusions on the
attenuation issue. See Monge, 173 Ariz. at 281, 842 P.2d at 1294 (we
review for legal error but defer to factual findings).

¶29           Because the state did not argue attenuation, Huez was
deprived of the opportunity to obtain such evidence. Therefore, the
proper course of action is to remand to the trial court for a new
evidentiary hearing at which the parties may introduce evidence
concerning the Brown/Strieff factors. See State v. Enriquez, 106 Ariz.
304, 308, 475 P.2d 486, 490 (1970) (remanding where no hearing held
on probable cause); State v. Zamora, 220 Ariz. 63, ¶¶ 8, 21, 202 P.3d
528, 532, 536 (App. 2009) (remanding where record insufficiently
clear to decide suppression on appeal); State v. Penney, 229 Ariz. 32,
¶ 19, 270 P.3d 859, 863-64 (App. 2012) (remanding where trial court
decided case on different issue); cf. Boteo-Flores, 230 Ariz. 551, ¶ 11,
288 P.3d at 114 (remand improper where appellate court may
determine attenuation as a matter of law where not considered by
trial court).

                             Disposition

¶30         For the foregoing reasons, we remand to the trial court
for an additional evidentiary hearing on the motion to suppress,


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                        STATE v. HUEZ
                       Opinion of the Court

limited to the state’s attenuation argument. If the court determines
that the evidence was admissible, Huez’s conviction and sentence
are affirmed, subject to any appeal from that decision. But if the
court determines the evidence was inadmissible, it shall suppress
the evidence and vacate Huez’s conviction and sentence, subject to
any appeal from that decision.




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