                                    FIRST DIVISION
                                    September 30, 2010

No. 1-05-0599



THE PEOPLE OF THE STATE OF ILLINOIS,    )   Appeal from the
                                        )   Circuit Court of
           Plaintiff-Appellant,         )   Cook County.
                                        )
           v.                           )   No. 03 CR 19807
                                        )
OMAR AL BUREI,                          )
                                        )   Honorable
           Defendant-Appellee.          )   David P. Sterba,
                                        )   Judge Presiding.

     JUSTICE HALL delivered the opinion of the court:

     Pursuant to Supreme Court Rule 604(a)(1) (210 Ill. 2d R.

604(a)(1), the Attorney General appealed from the granting of

defendant Omar Al Burei's motion to suppress evidence.     As the

defendant did not file a brief, the appeal was taken on the

Attorney General's brief only.    On December 5, 2006, this court

affirmed the granting of the defendant's motion to suppress in an

order pursuant to Supreme Court Rule 23 (Official Reports Advance

Sheet No. 15 (July 16, 2008), R. 23, eff. May 30, 2008).       People

v. Al Burei, No. 1-05-0559 (2006) (unpublished order under

Supreme Court Rule 23).   The Attorney General filed a petition

for leave to appeal.

     On November 26, 2008, our supreme court denied leave to

appeal but issued a supervisory order directing this court to
vacate and reconsider its judgment in light of People v. Cosby,

231 Ill. 2d 262, 898 N.E.2d 603 (2008).   Accordingly, we vacated

our judgment in Al Burei and considered whether Cosby required a

different result.   After finding Cosby distinguishable on its

facts from the present case, we affirmed the granting of the

motion to suppress.   See People v. Al Burei, 391 Ill. App. 3d 1,

908 N.E.2d 538 (2009) (Al Burei II).   The Attorney General filed

a petition for leave to appeal.

     On May 26, 2010, our supreme court denied the petition for

leave to appeal but issued a supervisory order directing this

court to vacate and reconsider its judgment in light of People v.

Oliver, 236 Ill. 2d 448, 925 N.E.2d 1107 (2010).    In accordance

with the supervisory order, we vacate our judgment in Al Bueri II

and consider whether the decision in Oliver requires a different

result.   We conclude it does not and affirm the granting of the

motion to suppress.   The pertinent facts are set forth below.

     The defendant was indicted and charged with the following

offenses: transportation of unstamped cigarettes with intent to

evade the cigarette tax (35 ILCS 130/9c (West 2002));

transportation of unstamped cigarettes without a permit (35 ILCS

130/9c (West 2002)); and possession of unstamped cigarettes with

intent to sell (35 ILCS 130/24(a) (West 2002)).    The defendant

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No. 1-05-0599

filed a motion to suppress evidence.       At the hearing on the

motion, the following evidence was presented.

                              BACKGROUND

                         I.   The Defendant

     Shortly after 1 p.m. on July 11, 2003, the defendant was a

passenger in a minivan driven by his friend, Majdi Ghaban.         The

car was owned by the defendant.    Mr. Ghaban was driving because

the defendant's driver's license was suspended.       The two men were

on their way to get something to eat when the minivan was stopped

by a police officer.   The officer spoke to Mr. Ghaban, advised

him that he had almost hit a bus and ordered him out of the

minivan.   After speaking with Mr. Ghaban for about three minutes,

the officer approached the defendant and asked for his driver's

license.   After the defendant tendered his license to the

officer, the officer ordered the defendant to exit the car.        The

officer then began to search the interior of the car.       He opened

the glove compartment and removed whatever was inside.       The

officer then informed the defendant that he was under arrest.

The officer also searched the back of the minivan but did not

remove anything.   The officer did not show the defendant any

warrants for his arrest, any search warrants and he did not ask

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No. 1-05-0599

the defendant's permission to search the minivan.    The defendant

was then taken to the police station.

       On cross-examination, the defendant acknowledged that there

were boxes of cigarettes in the back of the minivan.    He further

acknowledged that he told the officer that the cigarettes were

his.    Questioned as to whether the officer asked if he could take

a look in the minivan, the defendant testified, "He stood by the

window on the right side."

                     II.   Officer Glenn Tienstra

       Shortly after 1 p.m. on July 11, 2003, while on routine

patrol, Officer Tienstra observed a white minivan make a U-turn

in front of a Pace bus.    The minivan also had a cracked

windshield.    Officer Tienstra conducted a traffic stop of the

minivan.    He asked the driver, Mr. Ghaban, for his license.    Mr.

Ghaban displayed nervous behavior and kept looking at his

passenger.    Concerned for his safety, Officer Tienstra asked Mr.

Ghaban to exit the minivan and step to the back of the vehicle.

When questioned why he appeared nervous, Mr. Ghaban stated that

this was the first time he had ever been stopped by the police.

When Officer Tienstra asked if there was anything illegal inside

the minivan, Mr. Ghaban responded that he did not know and that

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No. 1-05-0599

the minivan belonged to his passenger, the defendant.

     Within five minutes of the stop, Officer Beckwith arrived on

the scene.    He waited with Mr. Ghaban while Officer Tienstra

spoke with the defendant.    Again for safety concerns, Officer

Tienstra had the defendant step out of the minivan and identify

himself.   The defendant did not produce a driver's license but

did identify himself to the officer.    Officer Tienstra asked the

defendant why Mr. Ghaban was so nervous and why the defendant was

not driving.    The defendant told him that he was not driving

because he was busy on his cell phone.    When Officer Tienstra

asked if there was anything illegal in the minivan, the defendant

stated not that he knew of and gave Officer Tienstra permission

to search the minivan.    Officer Tienstra instructed the defendant

to go to the back of the minivan with Officer Beckwith, while he

looked inside the vehicle.    Officer Tienstra searched the entire

minivan and located five cardboard boxes filled with cartons of

cigarettes.    Questioned about the cigarettes, the defendant

stated that he purchases cigarettes in Kentucky and sells them in

Illinois and Indiana.    Officer Tienstra opened some of the boxes

and ascertained that the cigarettes in those boxes had Kentucky

stamps but not Illinois stamps.

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No. 1-05-0599

     On cross-examination, Officer Tienstra stated that he issued

Mr. Ghaban a citation for the cracked windshield and a verbal

warning for the U-turn.     He issued the ticket at the police

station.1     Officer Tienstra requested that the defendant exit the

minivan due to safety concerns, even though the traffic stop was

made across the street from the police station and another

officer was then on the scene.     The time between the stop and the

defendant exiting the vehicle was approximately five minutes at

the most.     The defendant did not appear nervous and was not

committing any crimes.     His statements were not inconsistent with

those of Mr. Ghaban.     Officer Tienstra denied that he had not

asked the defendant's permission to search the minivan.

Questioned by the court, Officer Tienstra testified that

approximately five minutes elapsed between the time of the stop

and the search of the minivan.

     In ruling on the motion to suppress, the court found that




     1
         Officer Tienstra testified that the driver, Mr. Ghaban,

drove the vehicle across the street to the police station.       The

officer did not testify whether he ordered Mr. Ghaban to drive to

the police station or suggested to him that he do so.

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No. 1-05-0599

Officer Tienstra was justified in stopping the minivan.   The

court further found that Officer Tienstra asked for and received

the defendant's consent to search the minivan.   However, the

court further found that the officer's questioning of the

defendant "was completely unrelated to the initial purpose of the

stop."   The circuit court granted the motion to suppress.   The

Attorney General filed a certificate of impairment and timely

appealed the circuit court's order.

                           ANALYSIS

     The sole issue on appeal is whether the circuit court erred

in granting the motion to suppress evidence.

                       I. Standard of Review

     Where a motion to suppress involves credibility assessments

or factual determinations, a reviewing court will reverse a trial

court's ruling only if it is manifestly erroneous.   People v.

Driggers, 222 Ill. 2d 65, 70, 853 N.E.2d 414 (2006).   Where, as

here, the appeal concerns the trial court's ultimate ruling on

the defendant's motion to suppress, our review is de novo.

Driggers, 222 Ill. 2d at 70.

                          II. Discussion

     "When a police officer observes a driver commit a traffic

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No. 1-05-0599

violation, the officer is justified in briefly detaining the

driver to investigate the violation."     People v. Ramsey, 362 Ill.

App. 3d 610, 614, 839 N.E.2d 1093 (2005).     "A temporary detention

of an individual during a vehicle stop constitutes a seizure of

his person within the fourth amendment, even if the stop is brief

and for a limited purpose."     Ramsey, 362 Ill. App. 3d at 614.

The Supreme Court recently confirmed that in a traffic stop, a

passenger as well as the driver is "seized."     See Arizona v.

Johnson, 555 U.S. ___, ___, 172 L. Ed. 2d 694, 703, 129 S. Ct.

781, 787 (2009).

     As a general rule, a fourth amendment challenge to the

reasonableness of a traffic stop is analyzed under the principles

set forth in Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S.

Ct. 1868 (1968).     People v. Gonzalez, 204 Ill. 2d 220, 226, 789

N.E.2d 260 (2003), abrogated on other grounds by People v.

Luedemann, 222 Ill. 2d 530, 857 N.E.2d 187 (2006)2     (Terry




     2
         Luedemann held that cases such as Gonzales, stating that

"community caretaking" was a label to describe consensual

encounters, should no longer be followed on those specific

points.     Luedemann, 222 Ill. 2d at 548.

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No. 1-05-0599

analysis applies even though the vehicle stop was supported by

probable cause).    A Terry analysis includes a dual inquiry: (1)

"'whether the officer's action was justified at its inception,'

and (2) 'whether it was reasonably related in scope to the

circumstances which justified the interference in the first

place."   Gonzales, 204 Ill. 2d at 228, quoting Terry, 392 U.S. at

19-20, 20 L. Ed. 2d at 905, 88 S. Ct. at 1879.

     The first inquiry of the Terry analysis is satisfied as

there is no dispute that Officer Tienstra had probable cause to

stop the minivan.   In addition to the abrupt traffic maneuver,

Officer Tienstra observed the minivan's windshield was cracked.

See 625 ILCS 5/12-503(e) (West 2002) (Illinois Vehicle Code

requires that the windshield be unobstructed); see also Ramsey,

362 Ill. App. 3d at 613 (cracked windshield gave officer probable

cause to initiate a valid traffic stop).

     Under the scope requirement, if the questioning was

unrelated to the initial justification for the stop, the court

must consider whether the questioning impermissibly prolonged the

detention or changed the fundamental nature of the stop.

Gonzalez, 204 Ill. 2d at 235.   Recent case law has modified the

court's considerations in determining whether the scope

                                  9
No. 1-05-0599

requirement was violated.

     In Cosby, our supreme court noted that Gonzales had been

overruled to the extent that it holds that the reasonableness of

a traffic stop must be judged not only by its duration but also

by the additional criterion of whether the actions of the officer

altered the fundamental nature of the stop.   Cosby, 231 Ill. 2d

at 276, citing People v. Harris, 228 Ill. 2d 222, 244, 886 N.E.2d

947 (2008).   In other words, only the duration portion of the

Gonzales analysis remains.   Cosby, 231 Ill. 2d at 276.

     In Cosby, two cases were consolidated for review.    In both

cases, drivers were lawfully stopped for traffic violations.

After the stops were concluded, the police asked permission to

search the vehicles.   Mr. Cosby consented to the search, which

led to the discovery of drug paraphernalia in his car.    His

motion to suppress was denied, and he was convicted of possession

of drug paraphernalia.   On review by the appellate court, the

court relied on Gonzalez and held that the motion to suppress

should have been granted as the police questioning of Mr. Cosby

and the subsequent search unreasonably prolonged his detention

and changed the fundamental nature of the stop.   Cosby, 231 Ill.

2d at 267.

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No. 1-05-0599

     In the second of the consolidated cases, after he was

stopped for a traffic violation, Mr. Mendoza provided his license

and proof of insurance, which proved to be valid.   The police

officers then asked for permission to search his car.   Mr.

Mendoza refused.   While one of the officers observed a gun under

the driver's seat, the other officer, unaware of the gun, allowed

Mr. Mendoza to drive away.   The officers pursued the car and

arrested Mr. Mendoza.   Mr. Mendoza's motion to suppress was

granted based on Gonzalez.   On review by the appellate court, the

court rejected Gonzalez but determined that once his license and

insurance card had been returned to him, the traffic stop ended.

The appellate court concluded that a second seizure had occurred

when the officer questioned Mr. Mendoza, asking permission to

search his car.    Because there were two officers flanking his car

and because he was not told he was free to leave, the appellate

court concluded that Mr. Mendoza would not have felt free to

leave.   Since the gun was not detected until after he was seized

a second time, there was no basis for the second seizure.     Cosby,

231 Ill. 2d at 270.

         The supreme court noted that "[t]he requests for consent

to search in both of the instant cases followed the officers'

                                 11
No. 1-05-0599

returning of the defendants' paperwork.     At that point, the

traffic stops came to an end.    The relevant question then [was]

whether the officers' actions after the initial traffic stops had

concluded constituted a second seizure of either defendant."

Cosby, 231 Ill. 2d at 276.   In Mr. Cosby's case, the supreme

court determined that the request to search his car occurred

after the traffic stop had been concluded and thus did not

constitute a new seizure for fourth amendment purposes.     The

court rejected Mr. Cosby's argument that the request to search

was part of the traffic stop.    Based on the record, the court

found that the request to search occurred shortly after the

return of the paperwork to Mr. Cosby and not simultaneously as

Mr. Cosby contended.   The court then addressed whether Mr. Cosby

had been seized a second time.    Applying the factors in United

States v. Mendenhall, 446 U.S. 544, 64 L. Ed. 2d 497, 100 S. Ct.

1870 (1980), the court determined that Mr. Cosby was not seized

at the time he consented to the search and, therefore, his

consent to search was voluntary.      Cosby, 231 Ill. 2d at 284-85.

     Likewise, in the case of Mr. Mendoza, the supreme court

applied the Mendendall factors and concluded that Mr. Mendoza was

not seized by the officers' words and actions following the

                                 12
No. 1-05-0599

return of his driver's license and insurance card.    Cosby, 231

Ill. 2d at 282. There was no evidence to indicate that Mr.

Mendoza felt compelled to comply with the officer's request to

search his car, especially in light of Mr. Mendoza's refusal to

consent to the search.    Therefore, "the subsequent discovery of

the gun, the second stopping of Mendoza's car, and the officers'

search of the car did not violate Mendoza's fourth amendment

rights."   Cosby, 231 Ill. 2d at 288.

     In granting the motion to suppress in this case, the trial

court ruled as follows:

           "A review of the totality of the circumstances reveals

     that after the initial stop of the vehicle the officer

     lacked a reasonable articulable suspicion of any other

     illegal activity.    The initial purpose of the traffic stop

     was satisfied, but the officer continued to detain and

     question the Defendant in violation of fourth amendment

     principals [sic].    Defendant's subsequent consent to search

     the vehicle was thus tainted as the product of that unlawful

     detention so as to render said consent invalid."

     It is the return of the paperwork that signals the end of a

traffic stop.   Cosby, 231 Ill. 2d at 276.   There is no mention in

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No. 1-05-0599

the record that Mr. Ghaban received his license back.     The

officer did not issue a ticket at the scene.     Rather, Mr. Ghaban

was issued a ticket at the police station.3

     We find the facts in the present case distinguish it from

the two consolidated cases in Cosby.     In both cases in Cosby, the

court determined that the initial lawful traffic stops had come

to an end prior to the requests to search.     The court rejected

the arguments based on the detention prong.     See Cosby, 231 Ill.

2d at 284, 286.     In the present case, the traffic stop had not

yet been completed prior to the request to search.     We do not

reach the question of whether a second seizure took place because

the initial seizure of the defendant had not been concluded at

the time Officer Tienstra made the request to search the minivan.

Unlike Cosby, the pivotal question in this case is whether the

officers' actions violated the duration prong by prolonging the

traffic stop beyond its lawful purpose.

     There is no dispute that the stop of the minivan for routine




     3
         Although Officer Tienstra issued a verbal warning as to the

cracked windshield, the record does not indicate clearly where

that verbal warning was issued.

                                  14
No. 1-05-0599

traffic violations was lawful.   Officer Tienstra asked and

received a driver's license from Mr. Ghaban, the driver.    When

the officer questioned Mr. Ghaban as to why he was nervous, the

driver responded with the perfectly plausible answer that it was

the first time he had been stopped by the police.   That should

have ended the conversation, and the officer should have

proceeded to issue the appropriate traffic citations.    Instead,

upon the arrival of Officer Beckwith, Officer Tienstra

concentrated on questioning the defendant while Officer Beckwith

detained Mr. Ghaban.

     There is no evidence that either Officer Tienstra or Officer

Beckworth ever returned Mr. Ghaban's driver's license to him.

Morever, there is no evidence that Officer Beckwith issued the

appropriate traffic citations to Mr. Ghaban while Officer

Tienstra was questioning the defendant.   In fact, the traffic

citation was issued at the police station and only after the

search of the minivan and the discovery of the contraband.

     Like Cosby, Oliver involved a request to search after the

traffic stop had ended.   See Oliver, 236 Ill. 2d at 455 (it was

undisputed that the traffic stop was a constitutionally

permissible seizure, and the parties agreed that the initial

                                 15
No. 1-05-0599

traffic-stop seizure ended before the police officer sought the

consent to search).   The issue in Oliver was whether there was a

second seizure.   In the present case there was no issue as to a

second seizure because the traffic stop had not come to an end

and therefore, the defendant was still "seized" when Officer

Tienstra made the request to search.

     We conclude that, like Cosby, Oliver is distinguishable on

its facts and does not require a different result in this case.

     While the initial seizure of the defendant in this case was

lawful, it became unlawful when it was prolonged beyond the time

reasonably required to complete its purpose, namely, to issue the

appropriate traffic citations.   Long after the detention should

have ended, Officer Tienstra continued to question the defendant

during which time he consented to the search.   While contrary to

the defendant's assertion, the trial court found that he

consented to the search, and the court further found and, we

agree, that the defendant's consent to search was tainted by the

unlawful detention.

     The State argues that Officer Tienstra's questioning of the

defendant and the obtaining of his consent to search was proper

under Muehler v. Mena, 544 U.S. 93, 161 L. Ed. 2d 299, 125 S. Ct.

                                 16
No. 1-05-0599

1465 (2005), and Florida v. Bostick, 501 U.S. 429, 115 L. Ed. 2d

389, 111 S. Ct. 2382 (1991).    While "mere police questioning does

not constitute a seizure" (Bostick, 501 U.S. at 434, 115 L. Ed.

2d at 398, 111 S. Ct. at 2386), here, the defendant was already

"seized" as a result of the traffic stop.    In Muehler, the court

held that the plaintiff was properly detained as she was on the

premises subject to the search warrant.    Questions as to her

immigration status did not prolong her detention and, therefore,

there was no additional seizure within the meaning of the fourth

amendment.   Muehler, 544 U.S. at 100-01, 161 L. Ed. 2d at 308-09,

125 S. Ct. at 1471-72.   Moreover, in Muehler, the Court chose not

to address Ms. Mena's alternative argument, pertinent to this

case, that her detention extended beyond the time the police

completed the tasks incident to the search, because the court of

appeals had not addressed it.   Muehler, 544 U.S. at 102, 161 L.

Ed. 2d at 309, 125 S. Ct. at 1472.    Under the facts of the

present case, the officer's actions impermissibly prolonged the

stop rendering the initial lawful seizure unlawful.

     The State's reliance on Illinois v. Caballes, 543 U.S. 405,

160 L. Ed. 2d 842, 125 S. Ct. 834 (2005), is likewise misplaced.

In Caballes, the United States Supreme Court held that a dog

                                 17
No. 1-05-0599

sniff of a vehicle in the absence of a reasonable articulable

suspicion of any other illegal activity did not change the

character of the traffic stop that was lawful in its inception

and otherwise conducted in a reasonable manner, unless the dog

sniff itself infringed on the defendant's constitutionally

protected interest in privacy.   Caballes, 543 U.S. at 408, 160 L.

Ed. 2d at 847, 125 S. Ct. at 837.     The Court pointed out that as

there is no legitimate interest in possessing contraband,

governmental conduct that only reveals the possession of

contraband "'compromises no legitimate privacy interest.'"

Caballes, 543 U.S. at 408, 160 L. Ed. 2d at 847, 125 S. Ct. at

837, quoting United States v. Jacobsen, 466 U.S. 109, 123, 80 L.

Ed. 2d 85, 101, 104 S. Ct. 1652, 1662 (1984).

     The Court noted that a dog sniff is "sui generis," because

it "'discloses only the presence or absence of narcotics, a

contraband item.'"   Caballes, 543 U.S. at 409, 160 L. Ed. 2d at

847, 125 S. Ct. at 838, quoting United States v. Place, 462 U.S.

696, 707, 77 L. Ed. 2d 110, 121, 103 S. Ct. 2637, 2644 (1983).

The Court found that use of a dog sniff, which did not expose

noncontraband items that would otherwise remain hidden from

public view, during a lawful traffic stop, generally did not

                                 18
No. 1-05-0599

implicate any legitimate privacy interests.     Where the dog sniff

was performed on the exterior of the defendant's car while he was

lawfully stopped for a traffic offense, it did not rise to the

level of a constitutionally cognizable infringement.     Caballes,

543 U.S. at 409, 160 L. Ed. 2d at 847, 125 S. Ct. at 838.4

     Caballes reaffirmed the survival of the duration prong of

the Gonzalez analysis.     See Caballes, 543 U.S. at 407, 160 L. Ed.

2d at 846, 125 S. Ct. at 837 ("A seizure that is justified solely

by the interest in issuing a warning ticket to the driver can

become unlawful if it is prolonged beyond the time reasonably

required to complete [the] mission").     The second principle

stated in Caballes is that a police officer's actions do not

change the character of a traffic stop that is lawful to begin

with and otherwise executed in a reasonable manner unless the

actions infringe upon the defendant's constitutionally protected

interest in privacy.     Caballes, 543 U.S. at 408, 160 L. Ed. 2d at

846, 125 S. Ct. at 837; but see Harris, 228 Ill. 2d at 240 (while




     4
         On remand, our supreme court held that the dog-sniff

evidence was properly admitted at the defendant's trial.        People

v. Caballes, 221 Ill. 2d 282, 336, 851 N.E.2d 26 (2006).

                                  19
No. 1-05-0599

Caballes may be read to preserve some role for the "fundamental

nature of the stop" prong of the Terry/Gonzalez inquiry, the

court in Harris did not resolve that question because Muehler

"unequivocally" overruled Gonzalez).5

     Not only did Officer Tienstra's questioning of the defendant

impermissibly prolong the detention, but under Caballes, his

request to search the minivan also changed the fundamental nature

of the traffic stop because it infringed upon the defendant's

legitimate interest in privacy.     In this case, the defendant was

"seized" as a result of the traffic stop.     Under Caballes, the

search would have been proper if it had been limited to revealing

only items of a contraband nature.     Unlike the "dog sniff," which

was conducted on the outside of the vehicle and which could only

detect contraband, the search conducted in this case was not

limited to revealing contraband items.      The search was conducted




     5
         Nonetheless, the court in Harris concluded that a warrant

check did not implicate any legitimate privacy interests because

it did not reveal any legitimately private activity or

information, or result in physical contact with a person or his

property.     Harris, 228 Ill. 2d at 237.

                                  20
No. 1-05-0599

on the interior of the minivan where the defendant had a

legitimate privacy interest in items of a noncontraband nature.

     We conclude that the initial lawful seizure was rendered

unlawful by the actions of the police officers in impermissibly

prolonging the traffic stop and that the search of the minivan

infringed upon the defendant's constitutionally protected privacy

rights.   The search violated the defendant's fourth amendment

rights, and therefore, we affirm the granting of the defendant's

motion to suppress.

     Affirmed.

     PATTI and LAMPKIN, JJ., concur.




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