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Court Says Government Needs More Than The Permission Of A Couple Of Underperforming Drug Dogs To Justify Seizure Of $276,000

from the evidence:-it's-a-thing dept

Fri, Apr 22nd 2016 3:37pm — Tim Cushing

The Seventh Circuit Appeals Court has done something few courts do: told law enforcement it can't have that sweet, sweet "drug" money it lifted from two brothers for no other reason than that it felt there was something shady about its very existence.

Police responded to a call about a home invasion at the residence of Pedro and Abraham Cruz-Hernandez. While inside the house, officers came across a handgun, a small amount of marijuana and a scale. This apparently prompted the arrival of two drug dogs, considering they're not usually standard equipment for home invasion investigations.

When searching the brothers' van, police found $276,080. So, they took it. Why? Because their dogs said they could.

A police drug dog signaled the presence of drugs in Pedro’s van, which was parked outside the house. After obtaining a search warrant, the police discovered in the van a safe containing $271,080 in currency and two pages of handwritten notes including dates and numbers. The cash was bundled with rubber bands in stacks of $5,000. A second dog alerted to the safe. No drugs, however, were found in either the van or the safe.

It didn't matter that neither drug dog could adequately perform the single task required of them. The "alerts" were all the justification law enforcement needed to rob the brothers of their money.

As is standard operating procedure in asset seizures, no charges were brought but the "guilty" money remained in the possession of law enforcement. The brothers challenged the forfeiture. The government then tried to use a mistake any person could have made to justify its possession of the brothers' money.

The government also pointed to two alleged disavowals of ownership by Abraham: (1) a record created by U.S. Immigration and Customs Enforcement (ICE) six weeks before the police seized the safe, in which Abraham had said that he did not have any “equities” in the United States, and (2) Abraham’s application for cancellation of removal, filed with the assistance of immigration counsel six months after the seizure, in which he lists only $2,000 in “cash assets.” The government represented that Pedro and Abraham, when deposed, had testified that they told the truth to the police and to immigration officials.

The problem here is that Abraham was asked to list his cash assets. A normal person not versed in the convoluted fuckery that is asset forfeiture would reasonably conclude that his assets only include what's actually in his possession. As the government was still in possession of the $276,080 at the point Abraham was asked, he reasonably concluded he could only legally claim the $2,000 he had access to. The government took this reasonable conclusion and twisted it to mean Abraham had relinquished his claim on the $276,000.

In legal terminology, the government claimed the contradictory statements constituted a "sham affidavit." The court doesn't see it the government's way, though. (Emphasis in original.)

Changes in testimony normally affect the witness’s credibility rather than the admissibility of the testimony, and thus the sham-affidavit rule applies only when a change in testimony “is incredible and unexplained,” not when the change is “plausible and the party offers a suitable explanation such as confusion, mistake, or lapse in memory.”

[...]

Abraham’s explanation for his answer on the immigration form is not only plausible, but is correct. We suspect that many people—in particular immigrants completing a form for ICE—would not be aware that a legal claim is an asset. But whether they would or not, a legal claim—even a claim to money—is not itself a “cash asset.” See CASH, Black's Law Dictionary (10th ed. 2014) (defining cash as “1. Money or its equivalent; 2. Currency or coins, negotiable checks, and balances in bank accounts.”). Moreover, when deposing Abraham the government’s lawyer did not ask about his understanding of a “cash asset” or whether his attorney had explained the definition of that term. There is no reason, therefore, to reject out-of-hand Abraham’s deposition testimony that he had been truthful in his immigration filings.

Not only that, the court notes, but an element common to nearly all asset forfeitures doesn't help the government's case much.

It is also telling that the government has presented virtually no evidence that the brothers are involved in drug trafficking. There was nothing to indicate past or current drug dealing by the brothers or anyone else living with them in the house, nor was there any suggestion that either brother used the bedroom where the apparent drug paraphernalia was found. Though drug dogs had alerted to the safe and currency, the government did not submit to the court any evidence of the dogs’ training, methodology, or field performance.

(Given this limited sampling includes both dogs "claiming" drugs were present when no drugs were, it's likely the government felt records on training, methodology and field performance would only have made its case weaker.)

Neither did the government point to evidence (e.g., an experienced drug investigator’s opinion) to substantiate its assumptions that the notes found in the safe were a “drug ledger” or that counting and bundling currency is something that only drug dealers would do. “Absent other evidence connecting the money to drugs, the existence of money or its method of storage are not enough to establish probable cause for forfeiture,” much less enough to meet the now-heightened standard of a preponderance of the evidence.

And, finally this little kick to the government's ribs:

Courts have concluded that the government failed to meet its burden in cases with better evidence than this [one]...

And with that, the Appeals Court sends it back to the lower court with the judgment in favor of the government vacated. Considering the brothers appear to have "substantially prevailed," the government may find itself cutting a check for legal fees. In hindsight, it would have been smarter to have returned the money when it became apparent there was no basis for a criminal case. But that's not how the government rolls. Cash is presumed guilty until proven innocent, even when it's little more than two underperforming drug dogs and a small baggie of marijuana "justifying" the seizure.

Forfeiture-Denied (PDF)Forfeiture-Denied (Text)

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Filed Under: abraham cruz-hernandez, asset forfeiture, drug dogs, evidence, pedro cruz-hernandez, probable cause, seizure

42 Comments

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Anonymous Coward, 22 Apr 2016 @ 3:50pm

Who let the dogs out?
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AnonCow, 22 Apr 2016 @ 3:51pm

The police can't prove it in court, but we can all agree that the brothers are drug dealers, right?
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Anonymous Coward, 22 Apr 2016 @ 4:00pm

When searching the brothers' van, police found $276,080. So, they took it. Why? Because their dogs said they could.
You know who else listened to talking dogs? David Berkowitz.
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Alexander Riccio, 22 Apr 2016 @ 4:07pm

home invasion call?
I'm a bit curious about the home invasion call. Sure, Pedro admitted in court that he was tied up & such... But the robbers just left without looking in the safe? Huh? Maybe neither the police nor the defendants want to discuss the original reason for their whereabouts?

If they called 911, surely they must have a tape of the call?
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Anonymous Coward, 22 Apr 2016 @ 4:20pm

Re:
It doesn't matter.
That's exactly why there are courts.
You cannot just do whatever you want because somebody probably broke the law.
It is the courts job to protect us all from government abuses... Even if that means some probable purveyors of drugs don't suffer the legal consequences of their law breaking.
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PRMan (profile), 22 Apr 2016 @ 4:23pm

Re: home invasion call?
Why do you think he hid the money in the van? He knew having it in the house wasn't safe...
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Anonymous Coward, 22 Apr 2016 @ 4:25pm

Re:
Yes, I think it's perfectly reasonable to conclude based on the limited information provided in reading an article that the brothers were absolutely drug dealers. I also believe in aliens, the tooth fairy, Santa Clause, and nose goblins.
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Anonymous Coward, 22 Apr 2016 @ 4:31pm

The money, not the brothers
"It is also telling that the government has presented virtually no evidence that the brothers are involved in drug trafficking. "

While this might be true no one said that the brothers are involved in drug trafficking. It is the money that is involved in such things. Of course the brothers are free to go but I do not accept that the clearly guilty money is allowed to go with them.

We as the people should uphold the law and the law says that the guilty party should not go without punishment!!!
So I hereby force the USA Government by the will of the people* to punish the $276,080 to 50 strokes of lashing or death by electric chair, whatever seems appropriate.

*not a direct USA slave. I am owned by the German Gov which is only a protectorate of the USA since 1946.
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Miles Barnett (profile), 22 Apr 2016 @ 4:50pm

Uncalibrated Drug Detection Device
"Though drug dogs had alerted to the safe and currency, the government did not submit to the court any evidence of the dogs’ training, methodology, or field performance."

It sounds like they are using an uncalibrated drug detection device.

If it was a piece of machinery, there would be all kinds of rules to make sure the device was working properly. It seems that dogs are assumed to be 100% accurate 100% of the time.
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Anonymous Coward, 22 Apr 2016 @ 5:01pm

Re: home invasion call?
> ...robbers just left without looking in the safe?

I'm betting they didn't have their dynamite handy. And probably weren't well set up to torture the brothers without the risk of someone with a gun coming home.
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Personanongrata, 22 Apr 2016 @ 5:11pm

Can You Smell This?
Though drug dogs had alerted to the safe and currency, the government did not submit to the court any evidence of the dogs’ training, methodology, or field performance.

According to a study by the American Chemical Society 90% of the currency in circulation in the US has been contaminated with drug residue.

The paragraph below was excerpted from American Chemical Society study:

New study: Up to 90 percent of U.S. paper money contains traces of cocaine
WASHINGTON, Aug. 16, 2009

WASHINGTON, Aug. 16, 2009 — You probably have cocaine in your wallet, purse, or pocket. Sound unlikely or outrageous? Think again! In what researchers describe as the largest, most comprehensive analysis to date of cocaine contamination in banknotes, scientists are reporting that cocaine is present in up to 90 percent of paper money in the United States, particularly in large cities such as Baltimore, Boston, and Detroit. The scientists found traces of cocaine in 95 percent of the banknotes analyzed from Washington, D.C., alone.

http://www.acs.org/content/acs/en/pressroom/newsreleases/2009/august/new-study-up-to-90-percen t-of-us-paper-money-contains-traces-of-cocaine.html
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Anonymous Coward, 22 Apr 2016 @ 6:48pm

"Court Says Government Needs More Than The Permission Of A Couple Of Underperforming Drug Dogs To Justify Seizure Of $276,000"

I guess the court put down that idea.
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Anonymous Coward, 22 Apr 2016 @ 7:12pm

Only Tax Dollars
Considering the brothers appear to have "substantially prevailed," the government may find itself cutting a check for legal fees.

So? It's not like they'll have to pay it out of their own pockets.
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David, 23 Apr 2016 @ 12:40am

Re: Re:
"Santa Clause" sounds like a lawyer's wet dream.
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Anonymous Coward, 23 Apr 2016 @ 1:51am

Having dogs, every time I see a video of these drug dogs alert I am extremely suspicious the whole thing is a racket, usually involving the officer pointing at various things and the dog looking at that thing. If we are going to employ drug dogs I want a clear standard of training and nonleading by the handlers. Really they should take all this seized money and buy chemical detectors that can actually be audited but they are to busy buying all the fun toys like tanks.
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new guy, 23 Apr 2016 @ 3:29am

Re: shooting pigs in face
i thought the dog was god

so pig should be dead.

shoot to save yourself
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new guy, 23 Apr 2016 @ 3:30am

Re: Uncalibrated Drug Detection Device
dog is god
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Anonymous Coward, 23 Apr 2016 @ 3:49am

These officials need to be IN JAIL.

Basically they take money, spend it on house repairs (and in the case of one of the seizing officers and several court staff, a four day drinking binge with several other buddies), and the ONLY risk is tax-payers will have to pay the money back.
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Jaundice Abounds, 23 Apr 2016 @ 5:33am

Re: Uncalibrated Drug Detection Device
My Dog, Joe, has 100% accuracy in finding a can of chili - and can compound the aroma 1000% in less than 12-hours, to vacate any drug house you want vacated! Ask anyone who's sat on the couch after Joe has. If he gets up and leaves the couch, you get up and leave the couch too! That, my friends, is accuracy!
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Anonymous Coward, 23 Apr 2016 @ 6:36am

free money
Civil asset forfeiture needs to go away.
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Anonymous Coward, 23 Apr 2016 @ 6:57am

stealing with high taxes isn't enough they want to steal everything else from you as well
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Anonymous Coward, 23 Apr 2016 @ 6:58am

Re:
why?
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Anonymous Coward, 23 Apr 2016 @ 8:55am

asset incorporation to gain personhood?
Can you not incorporate assets such that they gain personhood and thus innocent until proven guilty?
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Anonymous Coward, 23 Apr 2016 @ 8:59am

Re:
Does not matter what you and a few others "agree" upon, everyone is supposed to receive equal treatment. Somehow I doubt your assessment is anything other than supposition.
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Anonymous Coward, 23 Apr 2016 @ 9:17am

Re: Re: Uncalibrated Drug Detection Device
Chili Dogs are awesome!
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Andrew D. Todd, 23 Apr 2016 @ 10:01am

No Suspicious Money
What it works out to is that the Cruz-Hernandez brothers seem to have legitimately earned $2000 each per month for more than ten years, which works out to sixty hours a week, at minimum wage, and saved about half of it. Like many illegal Mexican immigrants, they were living under more or less barracks conditions, something like eight or nine people in a house. I think I would expect a drug dealer to get a lot richer, a lot faster, assuming he didn't come to a bad end. Someone who had been at the illegal drug trade for ten years, and had neither been killed or imprisoned would mostly likely be a multi-millionaire, and he wouldn't be living in a barracks. The mere presence of cash doesn't mean a whole lot. To open a bank account, you need proper papers. It is credible that the brothers may have chosen to keep their money in a safe, as the least worst alternative. Once you accept that they were not allowed to use a bank or a stock brokerage, having a couple hundred thousand in a safe is no more suspicious than having a couple of hundred dollars in one's wallet.

It is also credible that the Chicago Police Department, based on its famously corrupt history, may have been engaged in collaboration with professional robbers ("we couldn't find their swag, now you have a try..."). One obvious point is that drug dealers don't call the police, no matter what. For obvious reasons. I reserve judgment about the gun, the electronic scales, and the baggie of cannabis that the police found. As the court notes, these were found in an unoccupied room which did not belong to the brothers, in what amounted to a kind of motel. But of course, there is what policemen call a "throw-down gun." It would be simple enough for a policeman to carry around a set of "throw-down" drug paraphernalia.

I know some Mexicans, and in my experience, they are very hard-working, I have lost track of the number of times I have seen them loading up for a long day's construction work at four in the morning. Obviously, the Chicago Police Department is full of Donald Trump fans, the way the German police before the Third Reich were full of Nazis. Policemen in all countries are notoriously susceptible to the ""authoritarian right," it's an occupational illness of sorts. Judging from his famously incoherent pronouncements, Donald Trump holds that red-blooded Americans have the right to steal the money of Mexicans... and Arab-Americans... and Chinese... and Jews...
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Joe S., 23 Apr 2016 @ 10:28am

Great case for civil forfeiture (and why its awful)
First, one thing with the article/headline that irked me; there's an appeal to ignorance argument here. "The government failed to provide data on the dogs performance therefore the dogs ARE under performing". The former does not prove the latter. The government could have easily made a blunder in not submitting training records or field performance data rather than strategically withheld information that would hurt their case. Whats the saying? Don't attribute to malice that what stupidity adequately explains. Or something along those lines.

Anyway, technical gripes aside, I think this is a good case to highlight why civil asset forfeiture is such a bad idea. This case is exactly what the law was designed for. We have a large sum of money next to a couple of drug users (probably). There's no definite proof that the money is linked to selling/distributing of drugs so the connection is loose and weak. The golden standard which normally must apply is that the link/guilt be proven beyond a reasonable doubt. The law was designed to undercut this standard "to go after the drug trade", never mind the potential for innocents to get swept up in this mess and loose hard earned money.

Personally, I think the scale (if it wasn't found in the kitchen) makes me believe that they probably (PROBABLY) were distributing, but if the link could be proven without a reasonable doubt, thats what must take place. If it can't be, then fine; no case, no conviction, no forfeiture. These laws lower the bar far below that 'reasonable doubt' standard of our justice system and its so ridiculous I don't know how its gone on for so long.

I'm happy about the appeals outcome, just sad it had to be brought in the first place.
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Toestubber (profile), 23 Apr 2016 @ 12:40pm

Re: Great case for civil forfeiture (and why its awful)
The "underperforming" line refers to this part of the story: "A police drug dog signaled the presence of drugs in Pedro’s van, which was parked outside the house...A second dog alerted to the safe. No drugs, however, were found in either the van or the safe."

It's pretty obvious that, like most drug dogs do, these canines were simply following the cues of their handlers (based on police guesswork). It's government magic.
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Bergman (profile), 23 Apr 2016 @ 2:54pm

Re: The money, not the brothers
By that logic, it's worth pointing out that the US Treasury Department has a lot more than $276,000 in guilty currency on its hands.

Someone ought to confiscate it and punish it. Death by burning at the stake sounds about right, and as a bonus, it will reduce inflation.
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Anonymous Coward, 23 Apr 2016 @ 3:52pm

Re: free money
Civil asset forfeiture needs to go away.

Along with government corruption. But neither one is going to happen anytime soon.
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Anonymous Coward, 24 Apr 2016 @ 6:14pm

Re: Re:
equal treatment has become a myth. Unless you work for the government or wear a badge in your daily job
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John Fenderson (profile), 25 Apr 2016 @ 8:03am

Re: Re: Re:
Even then, equal treatment is a myth. The privileged treatment of the cops and government may be favorable to cops and the government, but is certainly not "equal treatment".
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John Fenderson (profile), 25 Apr 2016 @ 8:05am

Re:
I am not suspicious the whole thing is a racket. I am 100% certain that the whole thing is a racket.
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Anonymous Coward, 25 Apr 2016 @ 8:13am

Re:
No, There was no evidence that they were dealing drugs.

Even if the tiny bit of drugs found was linked to the brothers it was not of sufficient quantity to demonstrate they had intention to distribute it.
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Joe S., 25 Apr 2016 @ 10:46am

Re: Re: Great case for civil forfeiture (and why its awful)
Granted, its possible (and maybe probable) that they were taking cues. But I'm not convinced its definitive. If drugs were present at a recent point in time, I think it's feasible that a dog could pick up a scent.
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Justme, 25 Apr 2016 @ 9:13pm

New Target. .
They should start targeting the money of lobbyists, it's common knowledge that it will end up involved in some kind of criminal act. :)
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Russell Redden, 26 Apr 2016 @ 4:25pm

Re:
No. A small amount of marijuana and a scale does not prove they were dealers. As immigrants, they might not feel safe putting their money in a bank, since banks have failed several times in the central/south American continent.
Scales are used everyday at the grocery store. Yet, they are used by BUYERS, not sellers only.
The same is true here. The amount found makes a difference.
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Execute All Government Thieves, 27 Apr 2016 @ 12:07am

Re: free money
The civil Forfeiture scam is "theft", period. I truly believe that if our founding fathers were somehow transported to these times, they would try to entice the American people to rise up & revolt against the current corrupt, tyrannical, overreaching, oppressive government. The U.S. Constitution specifically protects us against "Unreasonable Search & Seizure". How is seizing a citizens money, possessions, or property , without accusing, arresting, charging, trying, convicting, or sentencing them for any crime, not "unreasonable", & how is it not "theft"?
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Execute All Government Thieves, 27 Apr 2016 @ 12:11am

Re: Re:
In 2014, the value of goods, money, & property STOLEN by police/government, was GREATER than that stolen by burglars.
The civil Forfeiture scam is "theft", period. I truly believe that if our founding fathers were somehow transported to these times, they would try to entice the American people to rise up & revolt against the current corrupt, tyrannical, overreaching, oppressive government. The U.S. Constitution specifically protects us against "Unreasonable Search & Seizure". How is seizing a citizens money, possessions, or property , without accusing, arresting, charging, trying, convicting, or sentencing them for any crime, not "unreasonable", & how is it not "theft"?
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Execute All Government Thieves, 27 Apr 2016 @ 12:18am

Re: The money, not the brothers
That's actually how it works. When police/government thieves steal you're money, goods, or property, it is "The State VS. $20,456", or "The State VS. 2014 Cadillac Escalade". If you're "suspected", (but not accused, arrested, charged, tried, convicted, or sentenced) you have to prove the money wasn't obtained illegally/via illegal means. YOU have to prove innocence, the State doesn't have to prove guilt. You also have to put up a bond worth 15% of the value of the moneys, goods, or property. (which is lost if you lose the case)
Civil Forfeiture is "theft", period. I truly believe that if our founding fathers were somehow transported to these times, they would try to entice the American people to rise up & revolt against the current corrupt, tyrannical, overreaching, oppressive government. The U.S. Constitution specifically protects us against "Unreasonable Search & Seizure". How is seizing a citizens money, possessions, or property , without accusing, arresting, charging, trying, convicting, or sentencing them for any crime, not "unreasonable", & how is it not "theft"?
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Anonymous Coward, 27 Apr 2016 @ 4:49am

Re: Re: Re:
Agreed, but it is still spewed as though it were the case and when one asks where is my equal treatment, they have to get treatment from their medical professional and they have to pay for it themselves.
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Esteban, 27 Apr 2016 @ 11:37am

Re:
Wrong. The "ledger" was proven to be the brothers' ledger of when they send money home to their family, and it was also proven that they earned and saved the money legitimately.

Not everyone who has money is a criminal.
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