                                                                                        03/28/2019
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                       Assigned on Briefs December 18, 2018

 DANE SAYLES, ALIAS BRADLEY HARPER v. STATE OF TENNESSEE

                Appeal from the Criminal Court for Hamilton County
                    No. 293077 Thomas C. Greenholtz, Judge
                     ___________________________________

                            No. E2018-00141-CCA-R3-PC
                       ___________________________________

The Petitioner, Dane Sayles, appeals the Hamilton County Criminal Court’s denial of his
petition for post-conviction relief from his conviction of possession of three hundred
grams or more of cocaine for resale and resulting forty-year sentence as a Range II,
multiple offender. On appeal, the Petitioner contends that the post-conviction court erred
by refusing to apply Riley v. California, 134 S. Ct. 2473 (2014), which prohibits the
warrantless search of an arrestee’s cellular telephone incident to arrest, retroactively.
Based upon the record and the parties’ briefs, we affirm the judgment of the post-
conviction court.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which ALAN E. GLENN
and D. KELLY THOMAS, JR., JJ., joined.

Donna Robinson Miller, Chattanooga, Tennessee, for the appellant, Dane Sayles.

Herbert H. Slatery III, Attorney General and Reporter; Courtney N. Orr, Assistant
Attorney General; M. Neal Pinkston, District Attorney General; and Kevin Taylor
Brown, Assistant District Attorney General, for the appellee, State of Tennessee.

                                       OPINION

                                I. Factual Background

       This case relates to a traffic stop of a rental car in which Marcus Harper was the
driver and the Petitioner was the passenger. The Hamilton County Grand Jury indicted
each of them for possessing three hundred grams or more of cocaine for resale. State v.
Dane Sayles, No. E2012-00138-CCA-R3-CD, 2013 WL 1870058, at *1 (Tenn. Crim.
App. at Knoxville, May 3, 2013). After a joint trial, the jury convicted them of the
offense. Id. at *10.

       On direct appeal of the Petitioner’s conviction, this court gave the following
factual account of his crime:

              The State called Mark Hamilton as its first witness at trial. Mark
      Hamilton, employed through the [Chattanooga Police Department (CPD)],
      testified as an expert in forensic technology, with an emphasis in cell phone
      and audio enhancement. On April 5, 2010, Sergeant [Jason] Lewis had
      requested that Hamilton enhance the “audio for intelligibility on a DVD
      video.” The video was from a camera mounted within Sergeant Lewis’
      vehicle. Sergeant Lewis wanted Hamilton to attempt to reduce the
      peripheral noise such as air conditioning and passing cars and trucks.
      Hamilton was able to reduce this “white noise” using a noise reduction
      software to make conversations on the video more understandable. He then
      converted the video back to a standard DVD format.

             Hamilton testified that Sergeant Lewis also requested that he extract
      and analyze data from two cell phones: a Blackberry Pearl and a Nokia.
      Hamilton went to where the phones were stored by the department and
      checked them out for examination from March 18 until March 19 of 2010.
      Regarding the Nokia phone, he noticed that it was a “flip phone[ ],” but the
      phone would not stay closed. He charged the battery, placed it in a
      container that would disable the phone signal, and extracted the information
      from the phone onto a compact disc (“CD”). He completed a similar
      procedure in extracting from the Blackberry all data except the music.

              Hamilton read from a report regarding a specific text message that
      was received on the Nokia phone at 8:28 p.m. on April 28, 2008. Then, he
      identified the same text message sent from the Blackberry phone at 8:26
      p.m. Hamilton also identified a screen shot of the Blackberry phone
      displaying a text message that matched the content and date recorded in the
      report.

             Officer Dale Lockhart with the Hamilton County Sheriff’s
      Department testified that he previously was employed with the Dunlap
      Police Department and the CPD. He was a member of the CPD highway
      interdiction team for approximately five years. On April 28, 2008, Officer
      Lockhart was patrolling interstate 75 northbound in Hamilton County,
      which included his use of radar. At one point he observed a vehicle in
                                          -2-
which the co-defendants were traveling. According to his radar, the vehicle
was traveling sixty-six miles per hour in a fifty-five mile per hour zone.
Officer Lockhart also observed the vehicle make an improper lane change
and fail to use its blinker. He pulled behind the vehicle and stopped the
vehicle at the next safe location. On cross-examination, he acknowledged
that, in his report, he noted that he watched the improper lane change before
observing the vehicle speeding. He identified the co-defendant as the
driver and the Defendant as the passenger.

       Officer Lockhart approached the passenger side of the vehicle and
asked the codefendant for his driver’s license and proof of insurance. He
noticed that the co-defendant seemed “nervous” and handed Officer
Lockhart his entire wallet, rather than simply his driver’s license. The co-
defendant told him that the vehicle was a rental car, so he asked the co-
defendant for the rental agreement. The Defendant retrieved the agreement
from the glove compartment for Officer Lockhart. Officer Lockhart
observed that the Defendant “was breathing hard” and “never made eye
contact” with him.

       Officer Lockhart noticed that the rental agreement indicated that the
vehicle was rented in [Twanda] Campbell’s name. He identified this
agreement in court and noted that the phone number for Campbell and
Hertz were not listed anywhere on the document. Upon making this
observation at the scene, he returned to the rental vehicle and asked the co-
defendant to step out of the car. The co-defendant explained that the
Defendant’s girlfriend had rented the car for them. The co-defendant called
the Defendant his “uncle,” and when Officer Lockhart asked him what was
the Defendant’s name, the co-defendant said, “[Y]ou want me to go ask
him[?]” Officer Lockhart responded, “[N]o, I just figured you would know
your uncle’s name.” When the co-defendant offered to go ask the
Defendant, Officer Lockhart declined and stated that he would speak with
the Defendant.

      The co-defendant told Officer Lockhart that they were traveling
from Atlanta, Georgia, to Pittsburgh, Pennsylvania, to visit his sister who
was having a kidney transplant. The co-defendant could not tell Officer
Lockhart the name of the hospital or where it was located. Another officer
who arrived at the scene stayed with the co-defendant while Officer
Lockhart again approached the vehicle to speak with the Defendant.



                                    -3-
       Officer Lockhart asked the Defendant for his ID, and the Defendant
gave Officer Lockhart a passport and explained that he did not have a
driver’s license. The name on the passport was “Dane M. Sayles.” Upon
further investigation into the passport, Officer Lockhart learned that the
Defendant’s name was Bradley Melvin Sayles. The passport contained a
Pennsylvania address, but the Defendant told Officer Lockhart that he lived
in Atlanta. The Defendant explained that they were traveling to Pittsburgh.
When Officer Lockhart asked, however, if anyone was sick, the Defendant
responded, “[N]o, nobody’s sick. We're just going to visit.” At this point,
Officer Lockhart developed a suspicion of criminal activity.

       Officer Lockhart then returned to the co-defendant and informed him
that there were discrepancies in the co-defendants’ stories. He asked the
co-defendant whether they had anything illegal in the vehicle, listing
specific items. The co-defendant denied having anything illegal in the
vehicle, but, when asked specifically about cocaine, he turned and looked at
the vehicle. Officer Lockhart requested permission to search the vehicle,
and the co-defendant declined. The co-defendant continued to exhibit a
“nervous energy,” which gave Officer Lockhart the indication that
“something was not right.”

        Officer Lockhart returned to his vehicle and called to request a K-9
unit. He then walked back toward the co-defendant and notified him that
the K-9 unit was on its way. At that point, the co-defendant stated that he
wanted Officer Lockhart to search the vehicle rather than use the K-9 unit.
Accordingly, Officer Lockhart called and cancelled the request for the K-9
unit. He asked the Defendant to step out of the vehicle and to join the co-
defendant while he searched the vehicle. As Officer Lockhart initially
looked into the vehicle, he noticed that the seatbelts in the back seat were
stuffed between the seat cushions, which seemed to be “an indicator,” given
that the vehicle appeared relatively new. After looking through the front of
the vehicle, he lifted up the backseat and found “the first kilo of cocaine.”

       At this point, Officer Lockhart pulled out his taser, returned to the
co-defendants, and placed both of them in handcuffs. He could not
remember whether he informed them at that time as to why he was placing
them in custody. Officer Lockhart placed the co-defendant in his patrol
vehicle and left the Defendant near the front of the vehicle while he
returned to the rental vehicle to again look beneath the back seat. This
time, he found “another kilo of cocaine . . . on the other side under the back
seat.”
                                    -4-
       Officer Lockhart placed the “two kilos” of cocaine on the back of
the rental vehicle and placed the Defendant in the back of his patrol vehicle
with the co-defendant. At that time, Officer Lockhart also found $1,927 in
cash in the possession of the Defendant.

       Officer Lockhart testified that the rental vehicle was towed to the
narcotics office of the department. He identified a picture of a text message
displayed on the confiscated Blackberry which read, “I’m about to go out
of town real quick. I’ll be back tomorrow. My mom going to pick up or
pick you up. Her number.” He also identified other text messages that
read, “[W]ould you tell me if you were going to make a run” and “We’re
going to work.” From the Nokia cell phone, Officer Lockhart identified a
picture of a text message that read, “They want to search the car.” Officer
Lockhart asked both co-defendants if they were working, and both
individuals stated that they did not have a job at that time.

       Officer Lockhart next identified business cards that he found inside a
small phone book found at the scene. The State played the video from
Officer Lockhart’s patrol vehicle for the jury. On cross-examination,
Officer Lockhart agreed that he had watched the video approximately three
or four times and had watched the video before writing his report. He also
acknowledged that the video did not depict the vehicle’s improper lane
change or failure to use its blinker.

       Officer Lockhart also acknowledged that, shortly after informing the
co-defendant that he had requested a K-9 unit, he turned off his microphone
for five minutes. He and the codefendant also were out of the view of the
camera during that time. Five minutes later, the video depicted Officer
Lockhart again ask the co-defendant, “Now, I can search, right,” to which
the co-defendant consented. Additionally, although Officer Lockhart
previously had testified that he did not observe any items in the back seat of
the vehicle, he acknowledged a photograph from the scene depicting either
a black bag or jacket in the back seat.

       ....

       Sergeant Jason Lewis of the CPD testified that he was assigned as a
supervisor over the special investigations division. On April 28, 2008, he
received a call from Officer Lockhart to join Officer Lockhart at the scene
on Interstate 75. By the time that Sergeant Lewis had arrived at the scene,
                                    -5-
Officer Lockhart had found the cocaine, and Sergeant Lewis believed the
cocaine already was outside of the vehicle. He could not remember
whether he or Officer Lockhart took the photographs at the scene.

        Sergeant Lewis identified the Blackberry cell phone as belonging to
the co-defendant and the Nokia cell phone as belonging to the Defendant.
He agreed that he searched both phones for text messages and took pictures
of text messages retrieved from both phones. He confirmed that he was the
officer who sent the controlled substance to the crime laboratory. He also
was the person who downloaded the video from Officer Lockhart’s camera
to a disc in its original form before it was enhanced.

       ....

       Gerald W. Smith, the corporate security manager for the Hertz
Corporation in Atlanta, Georgia, testified regarding the process for vehicle
rentals and returns. He stated that, upon the return of [a] rental vehicle,
“[t]he car is then cleaned, refueled and vacuumed and washed.” Although
it would depend on the type of vehicle, he stated that the rear seat usually
would not be lifted up. He also explained the process for designating
multiple authorized users for a rental vehicle as follows: “They would need
a credit card and driver’s license just like renting the vehicle themself. And
there would be an additional operator form that would be filled out and it
would accompany the rental agreement.” The rental agreement itself would
not list the additional authorized users, but the agreement would list an
extra charge associated with that additional driver.

       Smith identified a rental agreement between Hertz and the individual
who rented the rental vehicle prior to [Twanda] Campbell in this case.
According to documentation, the vehicle was returned to Hertz by this
individual, Catherine Love, on April 28, 2008, the same day it was rented
by Campbell. The contract specified that Love rented the vehicle through
her insurance, likely providing transportation while her primary vehicle
received repairs. Campbell rented the vehicle approximately forty-five
minutes after Love returned it to the company. Hertz documented that the
vehicle had 1,750 miles at the time it was returned and 1,760 miles at the
time that Campbell received the vehicle.

      Smith stated that, although it is common for individuals to leave
behind items such as sunglasses and cameras in a rental vehicle, it is very
uncommon for someone to leave behind illegal drugs. In his twenty-one
                                    -6-
       years of experience at Hertz, he could not remember a situation in which
       illegal drugs were found upon the return of a rental vehicle.

Id. at *5-9.

        On direct appeal of his conviction to this court, the Petitioner argued, in pertinent
part, that the trial court erred by allowing the State to admit the text messages from the
cellular telephones into evidence at trial because the search of the telephones exceeded a
permissible search incident to arrest. Id. at *16. Initially, this court noted that it was
unclear from the record whether the police found the telephones on the codefendants’
persons or in the rental car. Id. Regardless, this court concluded that the searches of the
telephones were proper as a valid search incident to arrest if the telephones were found
on the codefendants’ persons and that the searches were proper pursuant to Marcus
Harper’s consent to search the vehicle if the telephones were found in the rental car. Id.

       After our supreme court denied the Petitioner’s application for permission to
appeal, he filed a timely pro se petition for post-conviction relief, arguing that he received
the ineffective assistance of trial counsel. Relevant to this appeal, the Petitioner alleged
that trial counsel “should have sought interlocutory review of the denial of the
suppression motion relative to the warrantless search of his cell phone.” The post-
conviction court appointed counsel, and post-conviction counsel did not file an amended
petition.

        At the outset of the evidentiary hearing, post-conviction counsel advised the post-
conviction court that the Petitioner’s “strongest basis” for post-conviction relief was
Riley v. California, 134 S. Ct. 2473 (2014), which the United States Supreme Court filed
after the Petitioner’s direct appeal of his conviction concluded. Post-conviction counsel
then called trial counsel as the Petitioner’s only witness.

        Trial counsel testified that the Petitioner retained her to represent him at his 2010
jury trial and that he was tried with his codefendant, Harper, who was the Petitioner’s
nephew. Trial counsel said that the police “looked into the [Petitioner’s] cell phone” and
that she raised an issue with regard to the warrantless search of the telephone before trial.
However, Judge Rebecca Stern denied relief, and the jury heard about text messages
recovered from the telephone. Post-conviction counsel asked trial counsel if the text
messages were “very inculpatory,” and trial counsel answered, “I don’t recall today the
exact content of the cell phone, but I know that there was information in there that might
lead the authorities to believe that my client was involved in inappropriate criminal
activity.” She later stated that the text messages “clearly would have been inculpatory
and damaging.”

                                            -7-
        Trial counsel acknowledged that the Petitioner’s defense was that someone who
rented the car from Hertz prior to the Petitioner’s girlfriend left the cocaine in the car.
Trial counsel filed a motion to suppress the search of the car “where we addressed the
issue of him being held on the side of the road longer than necessary.” Judge Stern
denied the motion, and trial counsel did not file an interlocutory appeal of the trial court’s
ruling.

        On cross-examination, trial counsel testified that at the time of the Petitioner’s
trial, she had been practicing law about fourteen years. She subpoenaed the Petitioner’s
girlfriend to the hearing on the motion to suppress the search of the rental car, and she
reviewed the police officer’s dashcam video of the stop in preparation for trial. After the
trial court denied the Petitioner’s motion to suppress the search of the car, trial counsel
filed a motion in limine to exclude the text messages in the cellular telephones from
evidence at trial. Trial counsel said she did not remember any Tennessee case law at the
time of the Petitioner’s trial that required a warrant for the search of a cellular telephone
incident to arrest.

       Trial counsel acknowledged that CPD officers, Drug Enforcement Administration
representatives, and a TBI forensic scientist testified at trial for the State. She also
acknowledged that the text messages from the cellular telephones were not the only
inculpatory evidence introduced at trial and that the police dashcam video recorded “an
admission of some sorts.” She explained,

       We had been provided a CD or DVD of the search of the vehicle, to my
       recollection, and also a recording of [the defendant] and his codefendant in
       the back of the police car. At the time it was initially provided to me you
       were not able to interpret any significant admissions made by the defendant
       and/or the codefendant; however, shortly before trial the district attorney’s
       office themselves or they had a representative clean that recording up to the
       point where you could then hear the defendant making an admission that to
       my recollections was in the -- from a standpoint where the defendant said
       something to the effect that I hope they don’t look under the back seat.
       Something to that nature. Once the recording was cleaned up shortly
       before trial that was what the nature of the admission was.

Trial counsel acknowledged that the Petitioner made the inculpatory statement while the
police officer was searching the rental car. Trial counsel said that she filed another
motion in limine to exclude the “cleaned up version” of the recording but that Judge
Stern overruled it. The State played the recording for the jury and introduced it into
evidence at trial.

                                            -8-
        Relevant to this appeal, post-conviction counsel argued that the Petitioner was
entitled to relief because Riley, which prohibits the warrantless search of an arrestee’s
cellular telephone incident to arrest, applied retroactively. In a written order, the post-
conviction court analyzed the issue pursuant to Bush v. State, 428 S.W.3d 1 (Tenn.
2014), and denied the petition.

                                       II. Analysis

       On appeal, the Petitioner asserts that Riley “undeniably” established a new rule of
constitutional criminal law and must be applied retroactively. The State argues that the
post-conviction court correctly held that Riley does not apply retroactively. We agree
with the State.

        Generally, “[r]elief under [the Post-Conviction Procedure Act] shall be granted
when the conviction or sentence is void or voidable because of the abridgment of any
right guaranteed by the Constitution of Tennessee or the Constitution of the United
States.” Tenn. Code Ann. § 40-30-103. A post-conviction court’s findings of fact are
entitled to substantial deference on appeal unless the evidence preponderates against
those findings. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001). However, we will
review the post-conviction court’s conclusions of law purely de novo. Id.; see Bush, 428
S.W.3d at 16 (holding that whether a case requires retroactive application is a question of
law that we review de novo).

        “A warrantless search is presumed unreasonable under both the federal and the
state constitutions, and evidence seized from the warrantless search is subject to
suppression unless the State demonstrates by a preponderance of the evidence that the
search was ‘conducted pursuant to one of the narrowly defined exceptions to the warrant
requirement.’” State v. Chearis, 995 S.W.2d 641, 643 (Tenn. Crim. App. 1999) (quoting
State v. Simpson, 968 S.W.2d 776, 780 (Tenn. 1998)). Two exceptions to the warrant
requirement include a search incident to arrest and a search conducted pursuant to
consent. See Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973). On June 25, 2014,
eight months after our supreme court denied the Petitioner’s application for permission to
appeal his conviction, the United States Supreme Court held in Riley that generally, a
warrant is required to search a cellular telephone even when the telephone is seized
incident to arrest. 573 U.S. at 2493. Shortly thereafter on July 1, 2014, Tennessee Code
Annotated section 40-6-110(b)(1), which provides that law enforcement must obtain a
search warrant in order to “search, examine, extract, or duplicate any cellular telephone
data,” took effect.

      The post-conviction court considered the retroactivity of Riley by following our
supreme court’s analysis in Bush v. State. In Bush, the court held that “the retroactivity
                                           -9-
of new constitutional rules in post-conviction proceedings should henceforth be
determined using [Tennessee Code Annotated section] 40-30-122,” which provides:

       For purposes of this part, a new rule of constitutional criminal law is
       announced if the result is not dictated by precedent existing at the time the
       petitioner’s conviction became final and application of the rule was
       susceptible to debate among reasonable minds.              A new rule of
       constitutional criminal law shall not be applied retroactively in a post-
       conviction proceeding unless the new rule places primary, private
       individual conduct beyond the power of the criminal law-making authority
       to proscribe or requires the observance of fairness safeguards that are
       implicit in the concept of ordered liberty.

428 S.W.3d at 16.

        Initially, we note that the Petitioner contends that the holding in Bush is inapposite
to the instant case because the Bush decision included an issue for due process tolling of
the statute of limitations, whereas the petition for post-conviction relief in this case was
timely filed. We disagree with the Petitioner. Our supreme court plainly stated in Bush
that “Tenn. Code Ann. § 40-30-122 governs the retroactive effect of Tennessee appellate
decisions to post-conviction petitioners.” Id. None of the language in Bush limited the
statute’s application to late-filed post-conviction petitions in which due process tolling
was an issue. Id. Moreover, as noted by the State, this court has previously applied
Tennessee Code Annotated section 40-30-122 pursuant to Bush to a case involving a
timely-filed petition for post-conviction relief. See Ronnie Lamont Harshaw v. State, No.
E2015-00900-CCA-R3-PC, 2017 WL 1103048, at *12 (Tenn. Crim. App. at Knoxville,
Mar. 24, 2017). Therefore, we turn to the first question we must answer in determining
whether Riley applies retroactively pursuant to Tennessee Code Annotated section 40-30-
122: whether Riley announced a new rule of constitutional criminal procedure.

       The post-conviction court found that Riley announced a new rule of constitutional
criminal procedure. We agree with the post-conviction court. This court’s unpublished
opinion in the Petitioner’s direct appeal of his conviction was the first and only case we
have found to address the search of a defendant’s cellular telephone incident to arrest. In
its analysis, this court considered that several federal jurisdictions had upheld such
searches. Dane Sayles, No. E2012-00138-CCA-R3-CD, 2013 WL 1870058, at *16.
Riley, filed by the United States Supreme Court eight months after our supreme court
denied the Petitioner’s application for permission to appeal, directly contradicted this
court’s and other courts’ opinions that law enforcement could search a defendant’s
cellular telephone incident to lawful arrest. Therefore, the Riley issue was subject to
debate and was not dictated by precedent. Accordingly, Riley announced a new rule of
                                            - 10 -
constitutional criminal procedure, and we turn to whether retrospective application of the
new rule is required.

       A new rule of constitutional criminal law shall be applied retroactively if the new
rule “places primary, private individual conduct beyond the power of the criminal law-
making authority to proscribe.” Tenn. Code Ann. § 40-30-122. As our supreme court
explained,

       Examples of this type of rule include Lawrence v. Texas, 539 U.S. 558
       (2003), in which the United States Supreme Court held that states could not
       criminalize homosexual intercourse between consenting adults, and Roe v.
       Wade, 410 U.S. 113 (1973), in which the United States Supreme Court held
       that states could not in most cases criminally penalize doctors for
       performing early-term abortions.

Bush, 428 S.W.3d at 17. The post-conviction court correctly found that Riley, which
addresses the procedural requirement that law enforcement obtain a warrant before
searching the contents of a cellular telephone, does not fall into this category.

       Alternatively, a new rule of constitutional criminal law shall be applied
retroactively in a post-conviction proceeding if the new rule “requires the observance of
fairness safeguards that are implicit in the concept of ordered liberty.” Tenn. Code Ann.
§ 40-30-122. The post-conviction court found that Riley also does not fall into this
category. Again, we agree with the post-conviction court.

       In Bush, our supreme court held that the phrase “requires the observance of
fairness safeguards that are implicit in the concept of ordered liberty” equates to the
Teague v. Lane standard’s “‘watershed rules of criminal procedure’” or “‘those new
procedures without which the likelihood of an accurate conviction is seriously
diminished.’” 428 S.W.3d at 20 (quoting Teague v. Lane, 489 U.S. 288, 313 (1989)).
Riley is not a watershed rule of criminal procedure. Instead, the rule clarifies that, due to
the amount of personal information stored in modern cellular telephones, the Fourth
Amendment generally requires that officers secure a warrant before searching those
telephones; the long-standing search incident to arrest exception to the warrant
requirement does not apply. Riley, 573 U.S. at 385-86. Likewise, Riley does not amount
to a fairness safeguard implicit in the concept of ordered liberty. “Rules governing the
collection of evidence do not cut to the heart of guilt or innocence.” Cross v. Gilmore,
164 F. Supp. 3d 818, 823 (E.D. Va. 2016). Furthermore, the Riley rule “is not necessary
to prevent the risk of inaccurate convictions, as ‘whether an investigation violated the
Fourth Amendment has no bearing on whether the defendant is guilty.’” Walter Carter v.
U.S., No. 1:09-CR-103-HSM-SKL-1, 2018 WL 1387065, at *6 (E.D. Tenn. Mar. 19,
                                           - 11 -
2018). Thus, we conclude that the post-conviction court correctly determined that Riley
does not apply retroactively.

                                   III. Conclusion

      Based upon the record and the parties’ briefs, we affirm the judgment of the post-
conviction court.

                                                  _________________________________
                                                  NORMA MCGEE OGLE, JUDGE




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