J-S37041-18

                              2018 PA Super 233

 IN THE INTEREST OF: M.W., A              :   IN THE SUPERIOR COURT OF
 MINOR                                    :        PENNSYLVANIA
                                          :
                                          :
 APPEAL OF: M.W.                          :
                                          :
                                          :
                                          :
                                          :   No. 1784 EDA 2017

              Appeal from the Dispositional Order May 9, 2017
  In the Court of Common Pleas of Philadelphia County Juvenile Division at
                      No(s): CP-51-JV-0000662-2017


BEFORE:    OLSON, J., McLAUGHLIN, J., and STEVENS, P.J.E.*

OPINION BY STEVENS, P.J.E.:                         FILED AUGUST 27, 2018

      Appellant M.W. appeals from the dispositional order entered by the

Court of Common Pleas of Philadelphia County Juvenile Division. Appellant

asserts that the lower court erred in denying his suppression motion. After

careful review, we affirm.

      On April 5, 2017, at approximately 1:40 p.m., Philadelphia Police Officer

Thomas Seymour and his partner, Officer Harris, were on patrol in the 14th

District when they observed a 2004 Chevrolet Impala drive through a stop

sign at the intersection of Walnut Lane and McCallum Street.         The driver

continued to travel above the posted speed limit on Walnut Lane and made a

quick turn onto Green Street. After the officers followed the vehicle and were

unable to search the license number, the officers initiated a traffic stop.

      Once Officer Seymour and Officer Harris exited the patrol car, Officer

Seymour approached the driver’s side of the vehicle with his hand on his



____________________________________
* Former Justice specially assigned to the Superior Court.
J-S37041-18



weapon and Officer Harris approached the passenger side with her weapon

drawn. The driver of the vehicle, seventeen-year old Appellant, complied with

the officers’ direction to stick his hands out of the window.      The officers

described Appellant as being cooperative with their requests.

      Upon further investigation, Appellant admitted he did not have a driver’s

license and did not produce registration for the vehicle.       Thereafter, the

officers asked Appellant to exit the vehicle and patted him down; the frisk did

not reveal any weapons.         While Officer Harris searched the vehicle’s

information on the computer database, Officer Seymour restrained Appellant

in handcuffs and placed him in the back of the patrol car. Officer Seymour

asserted that he told Appellant that he was being detained so the officers could

determine the ownership of the car.

      Thereafter, the officers learned through a computer database search

that the license plate on the 2004 Impala had been last issued to a 1992

Chevrolet; they also noticed that the VIN number on the dashboard of the

Impala did not match the VIN number on the inside driver’s door. Appellant

gave Officer Harris a false name and a false birthdate, and denied having any

identification on his person.    Appellant informed Officer Harris that the

vehicle’s documentation was in the glove compartment of the vehicle.

      Officer Seymour subsequently opened the glove compartment, in which

he discovered a Ziploc bag containing fourteen plastic jars of marijuana. The

officers also determined that the vehicle was not registered but the title was

in the name of Ms. Evelyn Jackson who lived in the 14th District. Appellant

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stated that he was not related to Ms. Jackson and did not provide any

explanation as to why he was driving this vehicle. At that point, the officers

informed Appellant that he was under arrest.

      As a result, Appellant was charged with intentionally possessing a

controlled substance and driving without a license.        Appellant sought to

suppress the marijuana seized from the vehicle as he asserted it was fruit of

an unlawful detention unsupported the requisite suspicion. After a hearing on

April 17, 2017, the lower court denied Appellant’s suppression motion. The

trial court stated its factual findings on the record, essentially accepting the

testimony of the officers; however, the trial court offered no legal analysis on

the issues raised in the suppression motion. At the conclusion of the hearing,

the lower court adjudicated Appellant delinquent, entered a dispositional order

for Appellant to remain in secure detention at the Philadelphia Juvenile Justice

Center, and directed that Appellant be placed in residential facility best suited

to his treatment, supervision, rehabilitation, and welfare.

      After Appellant filed a timely appeal, the trial court did not order

Appellant to file a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b), but instead filed a short opinion in which it

suggested it should have granted Appellant’s suppression motion and asked




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this Court to remand the case accordingly.1 The trial court did not give any

explanation as to why it believed its prior decision was in error.

       The sole issue on appeal is whether the trial court erred in denying

Appellant’s motion to suppress the marijuana that the officers seized from the

vehicle that Appellant was driving. Our standard of review is as follows:

       This Court is bound by those of the suppression court's factual
       findings which find support in the record, but we are not bound by
       the court's conclusions of law. When the suppression court's
       specific factual findings are unannounced, or there is a gap in the
       findings, the appellate court should consider only the evidence of
       the prevailing suppression party ... and the evidence of the other
       party ... that, when read in the context of the entire record,
       remains uncontradicted.

Commonwealth v. Millner, 585 Pa. 237, 246, 888 A.2d 680, 685 (2005)

(citations omitted).

       Appellant does not contest the legality of the stop of his vehicle, but

argues that the marijuana obtained from the vehicle must be suppressed as

the fruit of an illegal search and seizure. Specifically, Appellant challenges the

officers’ protective frisk of his person and their decision to place him in

handcuffs in the back of the patrol vehicle once they discovered he was driving

without a license in an unregistered vehicle.        Appellant asserts that the

officers did not have the authority to place him under arrest for the conduct

of driving without a license, which is a summary offense.
____________________________________________


1 We note that “a trial court can only speak through its orders—and that any
reasoning contained in a Rule 1925(a) opinion is advisory, and for the benefit
of this Court only.” Youst v. Keck's Food Serv., Inc., 94 A.3d 1057, 1079
(Pa.Super. 2014) (emphasis in original) (citation omitted).


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      The Commonwealth argues that Appellant cannot successfully challenge

the search of the vehicle as he failed to show a legitimate expectation of

privacy in the area searched. Alternatively, the Commonwealth contends that

the officers had probable cause to seize the vehicle after initiating a lawful

stop, learning that Appellant had no driver’s license, and discovering that the

vehicle was unregistered and had a mismatched license plate and differing

VIN numbers on the driver’s door and dashboard. Thus, the Commonwealth

argues that the officers had probable cause to seize the vehicle and to conduct

a reasonable inventory search, which included opening the vehicle’s glove

compartment to find documents that could help the officers determine who

owned the vehicle.

      In his reply brief, Appellant argues that he was not required to

demonstrate a reasonably cognizable expectation of privacy in the vehicle as

the officer’s discovery of marijuana in the vehicle constituted the fruit of an

illegal seizure of his person. Appellant cites Commonwealth v. Shabezz,

___Pa.___, 166 A.3d 278, 287 (2017), in which our Supreme Court held that

“evidence derived from an illegal automobile search constitutes fruit of the

poisonous tree as a result of the illegal seizure (unless the taint is removed),

and that no further demonstration of a privacy interest in the area from which

the evidence was seized is required by the Fourth Amendment.” Appellant

asserts the marijuana seized from the vehicle in this case was a direct product

or exploitation of an illegal seizure of his person and must be suppressed.




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      Even assuming, arguendo, that Appellant was not required to

demonstrate an expectation of privacy in the vehicle, we cannot find Appellant

was entitled to the suppression of the marijuana found in the glove

compartment as Appellant failed to show that he was subjected to an illegal

search or seizure.

      Appellant concedes that the officers were justified in stopping his vehicle

as they observed Appellant drive through a stop sign, which is a violation of

the Motor Vehicle Code. Appellant also admits that that he told the officers

that he did not have a driver’s license and could not produce any personal

identification or registration for the vehicle. See 75 Pa.C.S.A. § 6308(a) (“The

operator of any vehicle or any pedestrian reasonably believed to have violated

any provision of this title shall stop upon request or signal of any police officer

and shall, upon request, exhibit a registration card, driver's license and

information    relating   to   financial    responsibility,   or   other   means   of

identification”).

      Moreover, Appellant does not dispute that the officers had the authority

to ask Appellant to get out of the vehicle and to detain him to continue to

investigate the ownership of the vehicle. “As a matter of precaution, a police

officer is entitled to ask occupants of a vehicle to step from the vehicle during

a traffic stop.”    Commonwealth v. Van Winkle, 880 A.2d 1280, 1285

(Pa.Super. 2005) (citing Commonwealth v. Freeman, 563 Pa. 82, 757 A.2d

903 (2000) (citing Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54

L.Ed.2d 331 (1977))). See also Commonwealth v. Moser, 757 A.2d 377,

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379 (Pa.Super. 2000) (finding officers who had initially stopped a vehicle for

a traffic violation, were entitled to continue to detain the occupants to see if

the vehicle was stolen given that neither the driver nor the passenger could

show that they owned or had permission to drive the vehicle).

      In claiming that he was subsequently subjected to an illegal search and

seizure when he was frisked, handcuffed, and placed in the back of the police

cruiser, Appellant suggests that there is a bright line rule that an individual

has been arrested at the moment he is placed in handcuffs or any restraint.

However, Appellant does not address our precedent that suggests otherwise.

      This Court has held that an officer’s use of handcuffs to detain an

individual during an investigative detention for his or her safety does not

necessarily escalate the encounter into a custodial arrest. Commonwealth

v. Rosas, 875 A.2d 341 (Pa.Super. 2005), appeal denied, 587 Pa. 691, 875

A.2d 341 (2006) (citing Commonwealth v. Guillespie, 745 A.2d 654, 660-

61 (Pa.Super. 2001) (finding the officer’s decision to handcuff suspects during

an investigatory detention “was merely part and parcel of ensuring the safe

detaining of the individuals during the lawful Terry stop” and did not

constitute an arrest). Our Supreme Court has also declined to hold that an

arrest occurs every time the police place an individual in handcuffs.

Commonwealth v. Carter, 537 Pa. 233, 247, 643 A.2d 61, 67, n.2 (1994).

Rather, this Court has defined an arrest as:

      [a]ny act that indicates an intention to take the person into
      custody and subjects him to the actual control and will of the
      person making the arrest.... The test is an objective one, i.e.,

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      viewed in the light of the reasonable impression conveyed to the
      person subjected to the seizure rather than the strictly subjective
      view of the officers or the persons being seized.

Rosas, 875 A.2d at 348–49.

      In Rosas, this Court concluded that the officers did not subject Rosas

to a custodial arrest when they ordered him out of his vehicle and placed him

in handcuffs. Based on the totality of the circumstances, this Court found

Rosas could not have reasonably believed that he was under arrest after the

valid traffic stop given that the officers expressly told him that he was being

detained to find out Rosas’s true identity and to determine his connection to

the vehicle when Rosas did not have a driver’s license, any form of

identification, insurance, or registration for the vehicle.

      Likewise, in this case, after the officers discovered Appellant was driving

without a driver’s license or any form of identification in an unregistered

vehicle, the officers did not indicate that Appellant was under arrest but

instead informed Appellant he was being detained at that point for the purpose

of discovering who owned the vehicle Appellant was driving or whether the

vehicle was stolen.     N.T. 4/21/17, at 11, 30.        Although Appellant was

subjected to a protective frisk for the officers’ safety, placed in handcuffs, and

detained in the back of the police vehicle, we cannot conclude that M.W.

reasonably believed that he had been placed in custodial arrest when the

officers were attempting to determine his true identity and his connection to

the vehicle he was driving.




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       After further investigation, the officers discovered that (1) the license

plate on the 2004 Chevrolet Impala that Appellant was driving was last issued

to a 1992 Chevrolet and (2) the Vehicle Identification Number (VIN) on the

vehicle’s dashboard did not match the VIN number on the inside driver’s door

of the vehicle.2 At that point, the officers were justified in seizing the vehicle

due to the tampered VIN number. Section 7105 of the Vehicle Code provides

the following:

       (a) Duty of police.--Every police officer having knowledge of a
       vehicle on which the vehicle identification number has been
       removed or falsified shall immediately seize and take possession
       of the vehicle and arrest or file a complaint for the arrest of the
       suspected owner or custodian. In all actions involving seizure or
       possession of such vehicles, vehicle identification information shall
       be transmitted to the Federal or other agencies involved in
       recovery of stolen vehicles.
____________________________________________


2 Appellant does not challenge the officers’ authority to inspect the vehicle to
determine the VIN numbers located on the dashboard and the driver’s door of
the vehicle he was driving. We need not review the propriety of this action as
any such challenge is waived. Pa.R.A.P. 302 (“[i]ssues not raised in the lower
court are waived”).
       However, this Court has acknowledged precedent from other
jurisdictions finding that “the examination of a vehicle for the purpose of
inspecting the VIN plates or identification-number inscriptions is not a search
for purposes of the Fourth Amendment,” provided there are “legitimate
reasons to suspect criminal activity [is] afoot.”          Commonwealth v.
Grabowski, 452 A.2d 827, 831–32 (Pa.Super. 1982) (quoting United States
v. Forrest, 620 F.2d 446, 454-55 (5th Cir. 1980)). See also People v. Wolf,
60 Ill.2d 230, 326 N.E.2d 766, cert. denied, 423 U.S. 946, 96 S.Ct. 361, 46
L.Ed.2d 280 (Ill. 1975) (if an officer has reasonable suspicion of criminal
activity, his examination of a VIN, by opening a door is a reasonable search,
if a search at all); Wood v. State, 632 S.W.2d 734 (Tex.Cr.App. 1982)
(finding officer’s act of opening a car door to view a VIN, when the officer is
legitimately on the property where the car is parked, is not a search within
the Fourth Amendment; and if it were a search, it would be a reasonable one).


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75 Pa.C.S.A. § 7105.

      As the officers were permitted to “immediately seize and take

possession of the vehicle” and arrest or file a complaint against Appellant as

the suspected custodian, their subsequent search of the glove compartment

to find documents pertaining to the ownership of the vehicle was part of a

valid inventory search.    Our courts have thoroughly summarized the law

relevant to inventory searches as follows:

      inventory searches are a well-defined exception to the warrant
      requirement of the Fourth Amendment and are a recognized part
      of our law:

         it is reasonable for police to search the personal effects of a
         person under lawful arrest as part of the routine
         administrative procedure at a police station house incident
         to booking and jailing the suspect. The justification for such
         searches does not rest on probable cause, and hence the
         absence of a warrant is immaterial to the reasonableness of
         the search. Indeed, we have previously established that the
         inventory search constitutes a well-defined exception to the
         warrant requirement. See South Dakota v. Opperman,
         [428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976)].

      An inventory search is not designed to uncover criminal evidence.
      Rather, its purpose is to safeguard the seized items in order to
      benefit both the police and the defendant. We have recognized
      inventory searches in the two areas of automobiles and booking
      procedures. See [Commonwealth v. Scott, 469 Pa. 258, 365
      A.2d 140, 144 (1976)]; Commonwealth v. Daniels [474 Pa.
      173], 377 A.2d 1376 (Pa. 1977).

      Four goals underlie such searches. First, they protect the
      defendant's property while he is in custody; second, police are
      protected against theft claims when defendants are given their
      property upon release; third, they serve to protect the police from
      physical harm due to hidden weapons; and fourth, when
      necessary they ascertain or verify the identity of the


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      defendant. Intrusions into impounded vehicles or personal
      effects taken as part of the booking process are reasonable where
      the purpose is to identify and protect the seized items.

      As long as the search is pursuant to the caretaking functions
      of the police department, the conduct of the police will not be
      viewed as unreasonable under the Constitution. See Scott, 365
      A.2d at 144.

Commonwealth v. Gatlos, 76 A.3d 44, 55–56 (Pa.Super. 2013) (quoting

Commonwealth v. Nace, 524 Pa. 323, 571 A.2d 1389, 1391 (1990))

(emphasis in original)).

      Moreover,

      [this] Court has observed that “two factors must be present in
      order to justify the reasonableness of an inventory search in the
      absence of probable cause. The Commonwealth must show: (i)
      that the vehicle in question was lawfully within the custody of the
      police, and (2) that the search was in fact an inventory search
      pursuant to the objectives laid down in [Opperman]”
      Commonwealth v. Germann, [423 Pa.Super. 393], 621 A.2d
      589, 594 (Pa.Super. 1993), citing Commonwealth v. Brandt
      [244 Pa.Super. 154], 366 A.2d 1238 (Pa.Super. 1976). The
      Court, in Commonwealth v. Germann, supra, observed further
      that “‘motive’ is the sole factor which distinguishes a criminal
      investigatory search from a noncriminal inventory search of an
      automobile.” Id. at 595, citing United States v. Abbott, 584
      F.Supp. 442 (W.D.Pa. 1984).

Gatlos, 76 A.3d at 55–56 (quoting Commonwealth v. Collazo, 654 A.2d

1174, 1177 (Pa.Super. 1995)).

      In Collazo, officers placed the appellant under arrest for possessing a

controlled substance with intent to distribute after they observed the appellant

sell a confidential informant sixteen packs of heroin in exchange for

prerecorded buy money. After arresting the appellant, the officers sought to

impound his vehicle. Although the appellant asserted he owned the vehicle,

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it was registered to another individual and the vehicle’s VIN number was

illegible. The officers then searched the vehicle’s glove compartment for the

registration papers of the owner and discovered a packet of heroin with the

same label that appeared on the heroin that the appellant had sold the

informant.

      On appeal, this Court found the officers had conducted a valid inventory

search when they opened the vehicle’s glove compartment:

      It is clear that the vehicle which had been operated by appellant
      was lawfully seized and impounded by police. Under 75 Pa.C.S. §
      3352(c)(3), police could remove to a garage or place of safety any
      vehicle found after “the person driving or in control of the vehicle
      is arrested for an alleged offense for which the officer is required
      by law to take the person arrested before the issuing authority
      without unnecessary delay.” 75 Pa.C.S. § 3352(c)(3). Here, the
      vehicle had been seized by police after appellant's arrest for selling
      heroin to the informant. The motive for the subsequent search of
      the vehicle was solely to identify its owner and not to uncover
      evidence of crime.       The search, therefore, was within the
      caretaking function of the police, and, as such, was properly
      conducted without a warrant.

Collazo, 654 A.2d at 1177.

      Likewise, in the instant case, the officers lawfully seized Appellant’s

vehicle pursuant to 75 Pa.C.S.A. § 7105 as they had reason to believe that

the vehicle’s VIN number had been altered after observing differing VIN

numbers on the vehicle’s dashboard and driver’s door. Similar to Collazo,

the officers’ motive for searching the glove compartment was solely to identify

the owner of the vehicle and not to uncover evidence of a crime. As a result,




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the officers lawfully conducted a proper inventory search in opening the glove

compartment.

      Moreover, even if we were to accept Appellant’s claim that the officers

did not have the authority to frisk Appellant and place him in the back of the

patrol car after discovering he was driving without a license in an unregistered

vehicle, we reject Appellant’s suggestion that the marijuana seized from the

vehicle should have been suppressed as fruit of the poisonous tree.           Our

Supreme Court has fully summarized the relevant law as follows:

      Evidence of any kind obtained by police through an unlawful
      search may not be used in any respect, including as evidence at
      trial against the subject of the search. [Wong Sun v. United
      States, 371 U.S. 471, 484-85, 83 S.Ct. 407, 9 L.Ed.2d 441
      (1963));] Silverthorne Lumber Co. v. United States, 251 U.S.
      385, 392, 40 S.Ct. 182, 64 L.Ed. 319 (1920). Such evidence may
      only be used against the defendant “[i]f knowledge of [the
      evidence] is gained from an independent source,” Silverthorne
      Lumber Co., 251 U.S. at 392, 40 S.Ct. 182, or “the evidence in
      question would inevitably have been discovered without reference
      to the police error or misconduct,” Nix v. Williams, 467 U.S.
      431, 448, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984). The burden of
      proof is on the prosecution to establish by a preponderance of the
      evidence that the evidence illegally obtained would have
      ultimately or inevitably been discovered by legal means. Id. at
      444, 104 S.Ct. 2501.

      “The exclusionary remedy for illegal searches and seizures
      extends not only to the direct product of the illegality, the primary
      evidence, but also to the indirect product of the search or seizure,
      the secondary or derivative evidence.” Tainted evidence subject
      to exclusion—Secondary or derivative evidence: Fruit of poisonous
      tree, Searches and Seizures, Arrests and Confessions § 3:4 (2d
      ed.).    The test to determine whether derivative evidence
      constitutes the fruit of an illegal search is not simply whether
      police would not have discovered the information but for the
      search, as derivative evidence may nonetheless be usable and
      admissible if the connection between the information obtained was

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      sufficiently attenuated from the illegal search, thus removing the
      taint of the original illegality. Wong Sun, 371 U.S. at 487–88, 83
      S.Ct. 407; United States v. Crews, 445 U.S. 463, 471, 100 S.Ct.
      1244, 63 L.Ed.2d 537 (1980). To determine whether evidence
      must be excluded as the fruit of an unlawful search, courts must
      consider “whether, granting establishment of the primary
      illegality, the evidence to which instant objection is made has been
      come at by exploitation of that illegality.” Wong Sun, 371 U.S.
      at 488, 83 S.Ct. 407 (quoting Maguire, Evidence of Guilt, 221
      (1959) ); quoting Shabezz, 166 A.3d at 289 (“The inquiry simply
      is whether the evidence was obtained via exploitation of the initial
      illegality”); see also Nix, 467 U.S. at 443, 104 S.Ct. 2501 (“the
      prosecution is not to be put in a better position than it would have
      been in if no illegality had transpired” but “the derivative evidence
      analysis ensures that the prosecution is not put in a worse position
      simply because of some earlier police error or misconduct”). “In
      applying this test, a court must evaluate whether the illegal search
      or any leads gained from the search tended to significantly direct
      the government toward discovery of the specific evidence being
      challenged.” Searches and Seizures, Arrests and Confessions §
      3:4.

Commonwealth v. Fulton, ___Pa.___, 179 A.3d 475, 489–90 (2018).

      In this case, even if we assume that the officers subjected Appellant to

an illegal frisk and arrest, the officers did not recover the marijuana from the

glove compartment by exploiting the initial illegality as the officers were

justified in continuing to detain Appellant to determine the vehicle’s

ownership. Appellant admitted he did not have a driver’s license, failed to

produce any form of personal identification or registration for the vehicle, and

the vehicle itself had a mismatched license plate and conflicting VIN numbers.

      Thus, as discussed above, once the officers discovered the conflicting

VIN numbers, they had the right to seize the vehicle and conduct a reasonable

inventory search of the glove compartment. This search would have led to

the discovery of the marijuana regardless of whether the illegal frisk and arrest

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had occurred.      Appellant has not demonstrated how the officers’ frisk and

action in handcuffing Appellant and placing him in the patrol car necessarily

yielded the evidence in question. Based on the foregoing reasons, we find no

error in the lower court’s decision to deny Appellant’s suppression motion.3

       Dispositional order affirmed.

       Judge McLaughlin joins the Opinion.

       Judge Olson concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/27/18




____________________________________________


3 Appellant also suggests that his adjudication of delinquency was unlawful as
the charge of driving without a license is a summary offense that does not
qualify as a “delinquent act” under the Juvenile Act. See 42 Pa.C.S.A. § 6302.
However, as the lower court properly denied Appellant’s suppression motion
and found Appellant had committed the offense of simple possession of a
controlled substance, which does qualify as a “delinquent act,” the
adjudication of delinquency was proper.

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