                                                                                               Filed
                                                                                         Washington State
                                                                                         Court of Appeals
                                                                                          Division Two

                                                                                           August 4, 2020




      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                          DIVISION II
    STATE OF WASHINGTON,                                             No. 52506-2-II

                                 Respondent,

          v.

    STAYCEY DARRELL COLLINS,                                   UNPUBLISHED OPINION

                                 Appellant.

         LEE, C.J. — Staycey D. Collins appeals his convictions for two counts of delivery of a

controlled substance and one count of possession with intent to manufacture or deliver. Collins

argues that the trial court erred by denying his motion to suppress evidence found in his residence

because the search warrant was not supported by probable cause. Alternatively, Collins argues

that the trial court erred by denying his motion for a Franks1 hearing regarding an omission from

the search warrant affidavit. Collins makes similar arguments in his statement of additional

grounds (SAG).2 The trial court did not err by denying Collins’ motion to suppress or the motion

for a Franks hearing.

         Collins also appeals his sentence, arguing the trial court’s jury instructions regarding the

charged aggravating circumstances were a misstatement of the law. Because Collins did not object


1
    Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978).
2
    RAP 10.10.
No. 52506-2-II


to the jury instructions, we do not consider this argument. Accordingly, we affirm Collins’

convictions and sentence.

                                             FACTS

A.     MOTION TO SUPPRESS/FRANKS HEARING

       On April 10, 2017, the State charged Collins with one count of possession of a controlled

substance with intent to manufacture or deliver. On June 7, the State amended the information to

include a school bus stop enhancement.

       On September 17, 2018, the State filed a second amended information adding two counts

of delivery of a controlled substance. And the State added an aggravated circumstance to all three

counts, alleging that all the counts were major violations of the uniformed controlled substances

act (VUCSA).

       On January 25, 2018, before the State filed its second amended information, Collins filed

a motion to suppress evidence found in Collins’ home. Alternatively, Collins sought “leave to

later request a Franks hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1985).” Clerk’s

Papers (CP) at 20. Collins argued that the search warrants authorizing the search of Collins’ home

and vehicle were not supported by probable cause because the facts alleged in the affidavits

supporting the search warrant requests did not establish a nexus between the alleged criminal

activity and the place to be searched.

       Detective Eric Janson, a Kitsap County Sheriff’s Office detective assigned to the West

Sound Narcotics Enforcement Team (WestNET), applied for the search warrants. Probable cause

for the warrants was based on two controlled buys that Detective Janson performed with a police

informant.



                                                2
No. 52506-2-II


       Detective Janson described the first controlled buy as occurring during the week of March

20, 2017. Janson and another detective met with the informant prior to the controlled buy and

searched the informant and the vehicle for drugs, money, or weapons. A small amount of

marijuana was found and held until the controlled buy was completed. The informant arranged to

meet Collins at a pre-arranged buy location via text message. The informant completed the

controlled buy while under surveillance by police units. After the controlled buy was completed,

the informant provided Detective Janson with 3.7 grams of cocaine and stated that Collins

exchanged the cocaine for the pre-recorded money provided by the detectives.

       The second controlled buy was also conducted during the week of March 20. For this

controlled buy, Detective Janson arranged for a surveillance unit to follow Collins from his home

to the buy location and then back to Collins’ home. Prior to the controlled buy, the informant was

searched for drugs, money, and weapons, and none were found. The informant again arranged to

meet Collins at a pre-arranged location via text message. The assigned surveillance unit observed

Collins leave his house, get into his vehicle, and drive to the controlled buy location. The

controlled buy was conducted under police surveillance. After the controlled buy, Detective

Janson recovered 3.5 grams of cocaine from the informant. The informant stated she obtained the

cocaine from Collins in exchange for the pre-recorded buy money provided by the detectives.

Surveillance units followed Collins from the controlled buy location to his residence, where they

observed him exit the vehicle and go inside.

       In the affidavits for search warrant, Detective Janson noted that the informant was working

with the police in exchange for prosecutorial consideration. Detective Janson stated that much of

the informant’s information had been corroborated by independent sources and, to his knowledge,



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No. 52506-2-II


the informant had not provided any false or misleading information to detectives. Detective Janson

also noted that the informant struggled with narcotics addiction and had used narcotics in the past.

Detective Janson disclosed the informant’s criminal history of two prior drug convictions.

       The search warrant requests sought authority to search Collins’ residence for controlled

substances, records related to the use and sale of narcotics, drug paraphernalia, money and

proceeds from the sale of narcotics, financial records demonstrating how drug funds are utilized,

telephone records related to co-conspirators or customers, and electronic equipment such as cell

phones.

       In support of his motion to suppress, Collins argued that the search warrant was not

supported by probable cause because there was no allegation that anyone saw or knew of drugs or

contraband being stored in Collins’ house. Collins also argued that there was no established nexus

between evidence of drug possession and Collins’ home. And Collins claimed the search warrant

was invalid because it was based on material misrepresentations and omissions by the police.

However, Collins’ motion did not include allegations regarding what misrepresentations or

omissions were made or any allegations that the misrepresentations or omissions were intentional

or reckless. In fact, Collins motion contains no factual allegations supporting the claim regarding

misrepresentations or omissions.

       At the suppression hearing, Collins asserted that he was observed making a brief stop to

contact another individual on the way from his home to the controlled buy location. The State

responded to Collins’ assertion by arguing,

               The defendant stopped and made another drug deal before proceeding to
       this drug deal.




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No. 52506-2-II


               So I don’t know if the defense is trying to claim that per chance that’s a
       Franks issue because they did raise Franks in their—in their—in their briefing. But
       it really would add to the probable cause if they had added that additional
       information. He made a very brief stop where according to the officer’s training
       and experience, they would identify it as another drug deal. And then he went on
       to make this drug deal before returning directly to the residence.

Verbatim Report of Proceedings (VRP) (April 2, 2018) at 9. Collins disputed that it was a drug

deal and instead characterized it as a short stay in a public parking lot. Collins presented no other

facts regarding misrepresentations or omissions at the suppression hearing.

       The trial court denied Collins’ motion to suppress. In its oral ruling, the trial court

concluded that the facts alleged in the search warrant affidavits supported a finding of probable

cause. And the trial court stated,

               So with that in mind, in terms of the Franks issue—I mean I think the
       prosecution’s analysis of the Franks issue is correct. I’m not going to prohibit the
       defendant from—if they have additional information—or come across additional
       information to present that. But as it stands with the information I have in front of
       me this morning, there would be insufficient basis for a Franks hearing at this time.
       But whether or not that information comes to light to the defense, they certainly
       aren’t precluded from raising it again with additional information. But based on
       the information I have before me, there’s insufficient facts to support a Franks
       hearing at this time.

VRP (April 2, 2018) at 12. In its written order, the trial court incorporated the affidavits supporting

the search warrants. And the trial court made the following relevant conclusions of law,

               [III.] That a nexus existed between the defendant’s criminal activity and the
       place to be searched, the defendant’s home, even though the controlled buys did
       not take place at the residence. Under State v. G.M.V., 135 Wn. App. 366, 144 P.3d
       358 (2006), a nexus between the defendant’s residence and his criminal drug
       dealing is established if Officers observe the defendant leave from and return to the
       residence after he sold drugs. In this case, the Officers conducted surveillance on
       the defendant’s residence. Almost immediately after the informant notified the
       defendant that she wished to purchase drugs, the defendant left his home, drove to
       the area of the controlled buy, met with the informant, sold the informant cocaine,




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No. 52506-2-II


       and then returned home. This is sufficient information to provide a nexus between
       the defendant’s residence and his drug dealing activity.

               [IV.] That the defendant’s request for a Frank’s hearing is denied because
       the defendant has not alleged any omission or misrepresentations that would affect
       the Issuing Magistrate’s determination of probable cause.

CP at 92. Collins did not renew his motion for a Franks hearing.

B.     TRIAL

       The case proceeded to a jury trial on Count I, delivery of a controlled substance (the first

controlled buy), Count II, delivery of a controlled substance (the second controlled buy), and Count

III, possession of a controlled substance with intent to deliver with a school bus stop enhancement.

All three counts also included a major VUCSA aggravating circumstance allegation.

       Detective Janson testified at the jury trial to the facts surrounding both controlled buys

consistent with the facts presented in the search warrant affidavits as discussed above. Detective

Janson also testified that, after the controlled buys were completed, a search warrant was served

on Collins’ residence. During that search, officers found cocaine and money in Collins’ residence.

Some of the cocaine was packaged in separately wrapped bags.              The officers also found

paraphernalia associated with the packaging and sale of drugs. The officers further found a large

amount of cocaine during the search.

       The trial court gave the jury the following instructions regarding the major VUCSA

aggravating circumstance,

                                        Instruction No. 21

               If you find the defendant guilty of Delivery of a Controlled Substance as
       charged in Count I and II, or Possession with intent to deliver a controlled substance
       as charged in Count III, then you must determine if any of the following aggravating
       circumstances exist:



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No. 52506-2-II


               1) Whether the crime was a major violation of the Uniform Controlled
               Substances Act

       ...
                                        Instruction No. 23

               A major trafficking violation of the Uniform Controlled Substances Act is
       one which is more onerous than the typical offense. The presence of any of the
       following factors may identify the offense charged in Count I, II, and III as a major
       trafficking violation:
               Whether the offense involved at least three separate transactions in which
       controlled substances were sold, transferred, or possessed with intent to do so; or
               Whether the offense involved an attempted or actual sale or transfer of
       controlled substances in quantities substantially larger than for personal use

CP at 80, 82. Collins did not object to the trial court’s jury instructions on the major VUCSA

aggravating circumstance.

       The jury found Collins guilty of all three counts. The jury also found a major VUCSA

aggravating circumstance for all three convictions and that the possession of a controlled substance

with intent to deliver was committed within one thousand feet of a school bus route stop.

       Collins had no felony criminal history. Therefore, Collins’ standard sentence range on the

delivery of a controlled substance convictions was 12 months plus 1 day to 20 months and his

standard sentence range on the possession of a controlled substance with intent to deliver

conviction, including the school bus stop enhancement, was 36 to 44 months. Based on the major

VUCSA aggravating circumstance found by the jury, the trial court imposed an exceptional

sentence of 68 months confinement.

       Collins appeals.




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No. 52506-2-II


                                            ANALYSIS

A.     MOTION TO SUPPRESS

       Collins argues that the trial court erred by denying his motion to suppress because the

affidavit supporting probable cause “failed to establish a nexus between suspected drug activity

and the residence.” Br. of Appellant at 6. Although Collins concedes that there was sufficient

probable cause to support the search of Collins’ vehicle, he contends that there was not probable

cause to search his residence because the “officers did not observe a direct link between any drug

activity and Collins’ house.” Br. of Appellant at 8. However, because there were sufficient facts

alleged in the affidavit to support the reasonable inference that the evidence the officer sought

would be found in the residence, the trial court did not err in concluding that the warrant to search

Collins’ residence was supported by probable cause.

       We review a trial court’s determination of probable cause at a suppression hearing de novo.

State v. Dunn, 186 Wn. App. 889, 896, 348 P.3d 791, review denied, 184 Wn.2d 1004 (2015). Our

review is limited to the four corners of the document supporting probable cause. State v. Neth,

165 Wn.2d 177, 182, 196 P.3d 658 (2008). The information is reviewed as a whole to determine

whether a determination of probable cause is supported. Dunn, 186 Wn. App. at 896. And we

review the supporting document “‘in a commonsense manner, rather than hypertechnically.’”

State v. Lyons, 174 Wn.2d 354, 360, 275 P.3d 314 (2012) (quoting State v. Jackson, 150 Wn.2d

251, 265, 76 P.3d 217 (2003)).

       A search warrant may only issue upon a determination of probable cause “based upon facts

and circumstances sufficient to establish a reasonable inference that criminal activity is occurring

or that contraband exists at a certain location.” State v. Cole, 128 Wn.2d 262, 286, 906 P.2d 925



                                                 8
No. 52506-2-II


(1995). Probable cause exists as a matter of law if the supporting affidavit contains sufficient facts

and circumstances to establish a reasonable inference that the defendant is probably engaged in

illegal activity and that evidence of that illegal activity is at the location to be searched. State v.

Thein, 138 Wn.2d 133, 140, 977 P.2d 582 (1999). Therefore, “‘probable cause requires a nexus

between criminal activity and the item to be seized, and also a nexus between the item to be seized

and the place to be searched.’” Thein, 138 Wn.2d at 140 (quoting State v. Goble, 88 Wn. App.

503, 509, 945 P.2d 263 (1997)). The nexus between the evidence to be seized and the place to be

searched must be established by specific facts rather than by generalizations or conclusory

predictions. Thein, 138 Wn.2d at 146-47.

       Here, officers surveilling Collins during the second controlled buy observed that Collins

was home at the time the text messages setting up the controlled buy were sent. The officers then

observed Collins leave the house and drive to the controlled buy location. And the officers

observed Collins go directly back to the residence. Detective Janson sought a search warrant to

search the residence, not just for drugs, but also other evidence such as records, money, other

proceeds from drug sales, electronic equipment such as cell phones, and drug paraphernalia. The

fact that officers observed Collins in the house at the time the text messages were sent allows for

the reasonable inference that Collins’ cell phone would be found in the house when it was searched.

Furthermore, when Collins returned to the residence directly after the controlled buy, there was a

reasonable inference that Collins would have taken the money from the controlled buy into the

house with him.

       Collins asserts that case law stands for the proposition that if there are two places that drugs

could be stored, officers must establish a direct link between the place to be searched and the drugs.



                                                  9
No. 52506-2-II


First, this argument is misplaced because the officers were not simply searching for drugs at the

residence, they were searching for various types of evidence and, as explained above, there are

facts that allow for the reasonable inference that evidence of drug crimes would be found at the

residence. Second, Collins’ argument fails because no such rule exists. Collins relies on Thein

and Goble to support his argument. Neither cases establishes that the warrant here was not

supported by probable cause.

       Thein does not apply to this case because, in Thein, the affidavit supporting probable cause

alleged no specific facts that applied to the defendant’s residence. 138 Wn.2d at 138-39. Instead,

the officers had evidence that the defendant was supplying drugs to a third party and sought a

search warrant for the defendant’s house based on the common habits and practices of drug dealers.

Id. These types of generalizations are insufficient to establish probable cause. Id. at 147-48.

       Here, however, the officers did not rely on generalizations regarding the common habits or

practices of drug dealers to support the determination of probable cause. Instead, the officer

directly observed Collins go from his residence to the controlled buy and back to his residence.

Thus, unlike Thein, there were specific facts here that allowed for the reasonable inference that

evidence of drug dealing would be found in Collins’ residence.

       In Goble, officers identified a package at a mail facility that contained methamphetamine

addressed to the defendant’s Post Office box. 88 Wn. App. at 505. An officer sought a search

warrant for the defendant’s home. Id. at 505-06. Because there was no evidence establishing the

defendant was taking drugs from the post office box to his home, the magistrate granted the warrant

only on the condition that the package is transported to the defendant’s residence. Id. at 506-07.

The officer observed the defendant pick up the package and walk toward his house. Id. at 507.



                                                10
No. 52506-2-II


However, officers failed to observe the defendant actually enter the residence with the package.

Id. The court held that the warrant was not supported by probable cause at the time it was issued

because there were no facts that indicated that any evidence would be found at the defendant’s

home. Id. at 512. Instead, the facts only established that the defendant had drugs shipped to a Post

Office box. Id. In fact, the magistrate recognized this deficiency by imposing a condition on the

search warrant. Id. Therefore, there were not sufficient facts, at the time the warrant was issued,

to allow for a reasonable inference that there was probable cause to search the home. Id. at 512-

13. Nothing in Goble states that a “direct link” is required between the drugs and the residence if

the defendant could also be storing drugs in a vehicle. Br. of Appellant at 11.

       Here, unlike in Goble, surveillance officers had observed Collins leave his residence, go to

the controlled buy, and return home. There were specific facts that allowed for the reasonable

inference that the evidence officers sought was in Collins’ residence. Thus, because there was a

nexus between the evidence to be seized and the place to be searched, probable cause was

established.

       Because the warrants were supported by probable cause, the trial court did not err by

denying Collins’ motion to suppress. Accordingly, we affirm the trial court’s order denying

Collins’ motion to suppress.

C.     MOTION FOR FRANKS HEARING

       1.      Direct Appeal

       Collins also argues that the trial court erred by denying his motion for a Franks hearing.

Collins asserts that the fact that he made a stop in between the time he left his house and the time

of the controlled buy constituted a material omission from the search warrant affidavit. The State



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No. 52506-2-II


concedes that the omission in the affidavit supporting probable cause was material. For the reasons

explained below, we reject the State’s concession. Because the omission was not material to the

finding of probable cause, the trial court did not err by denying the motion for a Franks hearing.

        We review the trial court’s denial of a Franks hearing for an abuse of discretion. State v.

Wolken, 103 Wn.2d 823, 830, 700 P.2d 319 (1985). Under the Fourth Amendment of the United

States Constitution, omissions in a warrant affidavit may invalidate the warrant if the defendant

establishes that they are material and made in reckless disregard for the truth. Franks v. Delaware,

438 U.S. 154, 155-56, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978). To be entitled to a Franks hearing,

the defendant must make a substantial preliminary showing that the affiant deliberately or

recklessly made material misstatements in a search warrant. State v. Chenoweth, 160 Wn.2d 454,

478-79, 158 P.3d 595 (2007).

        An omission is material if it was necessary to the determination of probable cause. State

v. Copeland, 130 Wn.2d 244, 277, 922 P.2d 1304 (1996). To establish materiality, the defendant

“must show that probable cause to issue the warrant would not have been found if the omitted

material had been included.” Id.

        The omission here was not material to the probable cause determination. Collins argues

that leaving out the brief stop that he made on the way to the second drug buy eliminates the nexus

between the criminal activity and his house. Br. of Appellant at 17 (“the magistrate would likely

have been concerned that this individual who got in the car provided Collins with the drugs he

ultimately sold in the controlled buy rather than those drugs coming from Collins’ residence.”).

But this is incorrect.




                                                12
No. 52506-2-II


       Here, the stop on the way to the controlled buy was brief and the officers observed only a

short exchange. There is a reasonable inference that Collins was delivering drugs to another

customer rather than picking up a supply of drugs as Collins implies.

       And it is undisputed that Collins returned directly home after he completed both controlled

buys. In order to support probable cause to search the house there only needs to be sufficient facts

to support a reasonable inference that some evidence of the criminal activity would be found in

the house. Even if, as Collins implies, the stop indicates that there would be no drugs found in the

house, it is entirely reasonable to infer that other evidence of drug dealing, such as records, money,

or proceeds from drug sales, and Collins cell phone would be found in the house because Collins

returned directly to the house after completing the controlled buy.

       Because the affidavits establish probable cause to search Collins’ residence, even with the

additional fact considered, the omitted fact was not material to the determination of probable cause.

Therefore, the State’s concession that the omission was material is not well-taken and we reject it.

The trial court did not abuse its discretion by determining that the omitted fact was immaterial to

the determination of probable cause and did not warrant a Franks hearing.

       2.      Statement of Additional Ground (SAG)

       Collins also raises in his SAG a multitude of additional facts he believes were improperly

omitted from the warrant. However, none of the facts Collins relies on to support his claim were

presented to the trial court at the motion for a Franks hearing.

       We do not review issues raised for the first time on appeal. RAP 2.5(a). Because the

evidence on which Collins relies was not before the trial court when it denied the motion for a

Franks hearing, it is being raised for the first time on appeal.



                                                  13
No. 52506-2-II


       However, RAP 2.5(a)(3) provides an exception for a “manifest error affecting a

constitutional right.” “Application of RAP 2.5(a)(3) depends on the answers to two questions: ‘(1)

Has the party claiming error shown the error is truly of a constitutional magnitude, and if so, (2)

has the party demonstrated that the error is manifest?’” State v. Grott, 195 Wn.2d 256, 267, 458

P.3d 750 (2020) (quoting State v. Kalebaugh, 183 Wn.2d 578, 583, 355 P.3d 253 (2015)).

       Here, a Franks hearing implicates protections guaranteed by the Fourth Amendment and,

therefore, could be considered an error of constitutional magnitude. However, nothing in Collins’

SAG claim provides any information that would show that the officers acted intentionally or with

reckless disregard for the truth. Chenoweth, 160 Wn.2d at 478-79. And because intent or reckless

disregard for the truth cannot be inferred from the omissions, nothing provided in Collins’ SAG

would entitle him to a Franks hearing. Chenoweth, 160 Wn.2d at 481. Therefore, the alleged

error is not manifest and we decline to address it.

C.     AGGRAVATING CIRCUMSTANCES

       Collins argues that the trial court’s jury instructions on the major VUCSA aggravating

circumstance were a misstatement of the law. However, Collins did not object to the jury

instructions and makes no argument as to why we should review the jury instructions for the first

time on appeal. Accordingly, we decline to address Collins’ argument.

       “Generally, a party who fails to object to jury instructions below waives a claim of

instructional error on appeal.” State v. Edwards, 171 Wn. App. 379, 387, 294 P.3d 708 (2012);

RAP 2.5(a). RAP 2.5(a)(3) provides an exception for a manifest error affecting a constitutional

right. “Application of RAP 2.5(a)(3) depends on the answers to two questions: ‘(1) Has the party

claiming error shown the error is truly of a constitutional magnitude, and if so, (2) has the party



                                                 14
No. 52506-2-II


demonstrated that the error is manifest?’” Grott, 195 Wn.2d at 267 (quoting Kalebaugh, 183

Wn.2d at 583).

       Here, Collins’ does not present any argument or authority supporting review of the major

VUCSA aggravating circumstance instructions under RAP 2.5(a)(3). In fact, Collins’ briefing

fails to even acknowledge that Collins did not object to the jury instructions he now asserts are

error. “Passing treatment of an issue or lack of reasoned argument is insufficient to merit judicial

consideration.” Holland v. City of Tacoma, 90 Wn. App. 533, 538, 954 P.2d 290, review denied,

136 Wn.2d 1015 (1998). Because Collins has presented no reasoned argument to support review

under RAP 2.5(a)(3), we decline to address Collins’s assignment of error regarding the jury

instructions.3



3
  Even if we addressed the merits of Collins’s assignment of error, his challenge to the jury
instructions would fail. Collins argues that the language in Jury Instruction No. 23 misstated the
law. The jury instruction stated,

               A major trafficking violation of the Uniform Controlled Substances Act is
       one which is more onerous than the typical offense. The presence of any of the
       following factors may identify the offense charged in Count I, II, and III as a major
       trafficking violation:
               Whether the offense involved at least three separate transactions in which
       controlled substances were sold, transferred, or possessed with intent to do so[.]

CP at 82. This is consistent with the language of RCW 9.94A.535(3)(e) which states, in relevant

part, that it is an aggravating circumstance supporting an exceptional sentence if,

       The current offense was a major violation of the Uniform Controlled Substances
       Act, chapter 69.50 RCW (VUCSA), related to trafficking in controlled substances,
       which was more onerous than the typical offense of its statutory definition: The
       presence of ANY of the following may identify a current offense as a major
       VUCSA:
               (i) The current offense involved at least three separate transactions in which
       controlled substances were sold, transferred, or possessed with intent to do so[.]


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No. 52506-2-II


                                        CONCLUSION

        The trial court did not err by denying Collins’s motion to suppress the evidence found in

his residence or Collins’s motion for a Franks hearing. And Collins waived his challenge to the

trial court’s jury instructions regarding the major VUCSA aggravating circumstance. Accordingly,

we affirm Collins’s convictions and sentence.

        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,

it is so ordered.



                                                     Lee, C.J.
 We concur:



 Maxa, J.




 Cruser, J.




Accordingly, the jury instruction was not a misstatement of the law.


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