FILED
Dec 20 2017, 9:27 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Leanna Weissmann Curtis T. Hill, Jr.
Hoosier Appeals Attorney General of Indiana
Lawrenceburg, Indiana Christina D. Pace
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Frederico A. Conn, December 20, 2017
Appellant-Defendant, Court of Appeals Case No.
24A01-1703-CR-574
v. Appeal from the Franklin Circuit
Court
State of Indiana, The Honorable Clay M.
Appellee-Plaintiff. Kellerman, Judge
Trial Court Cause No.
24C02-1504-F6-297
Mathias, Judge.
[1] For purposes of privacy interests protected by Article 1, Section 11 of the
Indiana Constitution, closed doors matter; high fences matter; roped-off drives
matter; closed drapes matter; and in this case, a closed and locked gate matters.
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[2] Here, Conn appeals the trial court’s decision to admit evidence obtained during
a search at a private conservation club, arguing that the warrantless entry and
search of the club violated his rights under the Fourth Amendment to the
United States Constitution and Article 1, Section 11 of the Indiana
Constitution.1
[3] Because we conclude that the officers’ actions in this case were unreasonable
under the circumstances, and therefore impermissible under Article 1, Section
11, we reverse and remand.2
Facts and Procedural History
[4] Late in the evening on April 1, 2015, Frederico Conn attended a party with
friends at the Laurel Conservation Club (“the Club”) during which Conn and
other attendees shot firearms at a pizza box that had been converted into a
target. Around midnight, Cheryl Benevengo (“Benevengo”), who lives next to
the Club, heard gunshots as she drove by on her way home from work. She also
noticed people outside the Club having a party. The Club has an active
1
We held oral argument in this case at Hamilton Southeastern High School in Fishers, Indiana on
November 13, 2017. We thank the faculty, staff, and students for their gracious hospitality. We also thank
counsel for their excellent written and oral advocacy.
2
The State argues that Conn lacks standing to challenge the search under Article 1, Section 11. However, at
trial, the State only questioned whether Conn had a reasonable expectation of privacy on Club property, see
Tr. p. 37, which goes directly to the State’s federal constitutional claim. See Litchfield v. State, 824 N.E.2d 356,
359 (Ind. 2005) (explaining that Indiana courts have explicitly rejected the expectation of privacy as a test of
the reasonableness of a search or seizure under our constitution). Because the State failed to challenge Conn’s
standing to make the Indiana constitutional claim at trial, it may not raise the issue for the first time on
appeal, and therefore, the issue is waived. See Willis v. State, 780 N.E.2d 423, 427 (Ind. Ct. App. 2002)
(“Because the State failed to raise standing under the Indiana Constitution and because we cannot raise the
issue sua sponte, we proceed to the merits of the state constitutional challenge.”).
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shooting range, and Benevengo often heard gunfire coming from that direction.
However, she had never before heard gunfire so late on a weeknight. After an
hour of continued noise and activity coming from the Club, Benevengo called
the police. She told the dispatch officer that firearms were being shot, and that it
was possible animals were being killed illegally.3
[5] Roughly forty-five minutes later, three officers arrived at the Club in separate
marked cars: Department of Natural Resources Officer Andy Hagerty (“Officer
Hagerty”), and Franklin County Sheriff’s Department Deputies Adam Henson
(“Deputy Henson”) and Jeffrey Staat (“Deputy Staat”). By the time the officers
arrived, the gunfire had ceased and the activity was winding down.
[6] A locked gate obstructed the main road from the lane leading back to the Club. 4
As the officers pulled up, a vehicle was attempting to leave the Club property,
but was blocked in by the gate. The driver of the vehicle, Josh Wright
(“Wright”), told the officers that he was waiting for someone to come unlock it.
All three officers climbed over or otherwise maneuvered around the gate.
Deputy Staat stayed with Wright, while Officer Hagerty and Deputy Henson
3
Benevengo testified that she notified police that there were gunshots and “[y]elling and carrying on.” Tr. p.
26. It was Deputy Adam Henson who testified that Benevengo told dispatch that “her dog had drug some
animal parts over and thought maybe they were shooting some animals.” Id. at 72.
4
Officer Hagerty was asked if the gate was locked, and he testified, “I believe so.” Tr. p. 61. Deputy Henson
was asked the same question and responded, “Yes.” Id. at 87. Deputy Staat, when asked if the gate was
locked, indicated, “I ended up driving back and nobody had unlocked it. I don’t believe it was locked, but it
was closed.” Id. at 111. Additionally, Josh Wright was waiting in his vehicle at the gate for someone to come
unlock it. Id. at 75. Based on the testimony at trial, it is reasonable to infer that the gate was in fact locked.
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began walking down the Club’s lane where they saw a group of four individuals
standing beside two vehicles next to the Club’s building.
[7] As the officers made their way down the lane, they observed Conn veer away
from one of the two vehicles and walk behind the Club’s building. The officers
found this behavior suspicious and decided to investigate what Conn was
doing. Officer Hagerty then saw Conn jogging towards him from behind the
building, and he asked Conn what he was doing back there. Conn told the
officers that he had been urinating. After further questioning, Conn admitted
that he had hidden a firearm behind the building.
[8] Conn led the officers back to where he hid the firearm under a board and some
leaves. In addition to a .22 caliber handgun, the officers also discovered two
change purses and a box of .22 caliber ammunition nearby. Inside the change
purses the officers found a glass pipe, a pen modified into a straw, and baggies
containing methamphetamine.
[9] Conn was charged with Level 6 felony possession of methamphetamine, Class
A misdemeanor possession of a firearm by a domestic batterer, and Class A
misdemeanor possession of paraphernalia. A two-day jury trial commenced on
January 18, 2017, and during trial Conn objected to the admission of the
evidence retrieved from the Club. The trial court overruled the objection, and
the jury found Conn guilty. On February 14, 2017, Conn was sentenced to two-
and-one-half years to be served at the Franklin County Security Center. Conn
now appeals.
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I. Standard of Review
[10] When reviewing a trial court’s ruling on the admissibility of evidence resulting
from an allegedly illegal search, we do not reweigh the evidence, and we
consider conflicting evidence most favorable to the trial court’s ruling.
Cartwright v. State, 26 N.E.3d 663, 667 (Ind. Ct. App. 2015), trans. denied.
However, the constitutionality of a search or seizure is a pure question of law
that we review de novo. Browder v. State, 77 N.E.3d 1209, 1213 (Ind. Ct. App.
2017), trans. denied.
II. Article 1, Section 11 of the Indiana Constitution
[11] Conn claims that the officers’ actions here violated his rights under both the
Fourth Amendment to the United States Constitution and Article 1, Section 11
of the Indiana Constitution. Because we conclude that the officers’ actions here
were unreasonable under Article 1, Section 11, we do not address Conn’s
claims under the Fourth Amendment.
[12] Under Article 1, Section 11, the legality of a governmental search turns on an
evaluation of the reasonableness of the police conduct under the totality of the
circumstances. Litchfield v. State, 824 N.E.2d 356, 359 (Ind. 2005). Our supreme
court has explained that the reasonableness of a search or seizure necessitates a
balancing of: (1) the degree of concern, suspicion, or knowledge that a violation
has occurred; (2) the degree of intrusion the method of the search or seizure
imposes on the citizen’s ordinary activities; and (3) the extent of law
enforcement needs. Id. at 361. In evaluating these factors to determine whether
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police behavior in a given case was reasonable under Section 11, we consider
each case on its own facts, and we construe the constitutional provision
liberally so as to guarantee the rights of Hoosiers against unreasonable searches
and seizures. Mundy v. State, 21 N.E.3d 114, 118 (Ind. Ct. App. 2014). Thus, it
is the State’s burden to prove that the police intrusion was reasonable under the
totality of the circumstances. Austin v. State, 997 N.E.2d 1027, 1034 (Ind. 2013).
A. Degree of Concern, Suspicion, or Knowledge
[13] Here, the degree of concern, suspicion, or knowledge the officers had that a
violation of law had occurred was negligible. The officers arrived at the Club to
investigate “ongoing shooting” and that “maybe [those at the Club] were
shooting some animals.” Tr. p. 72. However, once the officers arrived, the
shooting had stopped. There was no evidence of poaching or any animals being
killed. And Ms. Benevengo testified that it “looked like they were [] wrapping it
up by the time [the officers] got there.” Id. at 27.
[14] The State argues that the degree of concern was high because the officers
received a tip that led them to believe criminal activity was occurring at the
club. However, there is no evidence supporting this conclusion. During trial,
each of the three officers conceded that it is not against the law to shoot a gun at
a conservation club, and none of the officers saw any evidence of poaching.
Further, there were no allegations of other criminal activity that Conn and
those at the Club may have been involved in. Simply put, at the time the
officers arrived at the Club, there was little, if any, evidence that Conn had
violated any laws. See Trotter v. State, 933 N.E.2d 572, 580 (Ind. Ct. App. 2010)
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(finding that the officers’ degree of concern, suspicion, or knowledge that a
violation had occurred was “non-existent” where the officers arrived on scene
to investigate a complaint of gunshots fired in a backyard). Under the facts and
circumstances before us in this case, the degree of the officers’ suspicion here
was minimal.
B. Degree of Intrusion
[15] The degree of intrusion is evaluated from Conn’s point of view. See Litchfield,
824 N.E.2d at 360. This factor is the most concerning aspect about the officers’
conduct in this appeal. When the three officers arrived at the Club property,
they were barred from entering the Club by a locked gate. Each officer then
either jumped over or maneuvered around the gate. Moreover, during this time,
Wright was in his vehicle attempting to exit the Club and waiting for someone
to come unlock the gate so he could leave. Under these circumstances, the
officers could have either: (1) waited for the gate to be unlocked and stopped
persons on their way out; or (2) obtained a warrant. There was no reason to
ignore a locked gate.
[16] The State contends that the degree of intrusion was low; however, its
assessment fails to acknowledge that the officers encountered a locked gate. Our
courts have consistently held that when Indiana citizens put mechanisms in
place to keep others out, ignoring these obstructions constitutes highly intrusive
conduct by law enforcement. See Carpenter v. State, 18 N.E.3d 998, 1002 (Ind.
2014) (explaining that the degree of intrusion was high where officers jumped
over a locked gate and fence to reach an open door); Mundy, 21 N.E.3d at 119
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(finding the degree of intrusion was high when officers took down a cable that
was blocking a drive); Trotter, 933 N.E.2d at 581 (concluding that the degree of
intrusion was immense where the officers entered a pole barn through an
unlocked door); Divello v. State, 782 N.E.2d 433, 438 (Ind. Ct. App. 2003)
(holding that walking through a privacy gate is highly intrusive because the area
cannot be regarded as one where uninvited visitors would normally be expected
to travel). Under the facts and circumstances before us, the degree of intrusion
on the ordinary activities of the partygoers and Conn was substantial.
C. The Extent of Law Enforcement Needs
[17] Finally, we consider the extent of law enforcement needs. There was absolutely
no evidence of emergency or outside threat to the public, and the officers had
several other ways that they could have addressed Ms. Benevengo’s concerns.
See Masterson v. State, 843 N.E.2d 1001, 1007 (Ind. Ct. App. 2006) (explaining
that the third Litchfield factor “requires consideration of the nature and
immediacy of the governmental concern.”), trans. denied. The officers could
have asked Wright about the noise and activities at the Club when they
encountered him at the gate. Or, the officers could have waited for someone to
come let Wright out and then asked for permission to enter the property.
[18] Although the officers were responding to reported gunfire late on a weeknight,
we find it significant that the gunfire was ongoing at a Club with a shooting
range, where gunfire is not uncommon. And Conn was firing at a pizza box
converted into a target—this is not a situation where an individual is waving a
gun around in public in a densely populated area. See Grayson v. State, 52
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N.E.3d 24 (Ind. Ct. App. 2016), trans. denied. Additionally, there was no
evidence of exigent circumstances that would have justified the officers’
unlawful intrusion. Cf. Holder v. State, 847 N.E.2d 930, 940–41 (Ind. 2006)
(holding that warrantless entry into a home was justified where large amounts
of ether fumes were emanating from the home and pervading the
neighborhood); VanWinkle v. State, 764 N.E.2d 258, 266–67 (Ind. Ct. App.
2002) (holding that a warrantless entry into a residence was appropriate where
officers had reasonable grounds to believe immediate aid was needed inside),
trans. denied.
[19] The State argues that the extent of law enforcement needs was high because of
reports of “armed individuals shooting randomly at areas and at times not
common for the area.” Appellee’s Br. at 23. But the shooting had stopped by
the time all three officers arrived at the Club. And there is no evidence that any
of the partygoers on the Club property that evening were, or had been,
“shooting randomly.” Instead, the evidence presented at trial indicates that
Conn and those he was with were firing at a pizza box. The officers did not
need to jump over a locked gate in order to investigate what amounted to a
noise complaint. See Carpenter, 18 N.E.3d at 1003 (finding that law enforcement
needs were low where there was no evidence of anyone in danger of harm or in
need of assistance and where the police had other means of addressing the
situation).
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D. Balancing the Totality of the Circumstances
[20] Taken together, these factors lead us to conclude that the State has not met its
burden of establishing that the officers’ actions in this case were reasonable. The
degree of concern, suspicion, or knowledge that a criminal violation had
occurred or was occurring was minimal. The officers’ decision to maneuver
over or around a locked gate to access private Club property represents a
substantial level of intrusion. And finally, the extent of law enforcement needs
was low. Accordingly, we hold that the officers’ conduct violated Article 1,
Section 11. Because the evidence was obtained as a result of an illegal search
and seizure, it amounts to the fruit of the poisonous tree; and thus, the trial
court abused its discretion when it admitted the evidence at trial. Gyamfi v. State,
15 N.E.3d 1131, 1138 (Ind. Ct. App. 2014).
Conclusion
[21] Under the facts and circumstances of the present case, we conclude that the
conduct of the police officers was not reasonable. The officers’ entry onto Club
property violated Article 1, Section 11 of the Indiana Constitution and
therefore, the evidence obtained after the illegal search should not have been
admitted at trial. For all of these reasons, we reverse the conviction and remand
for proceedings consistent with this opinion.
[22] Reversed and remanded.
Crone, J., concurs.
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Vaidik, C.J., dissents with opinion.
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ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Leanna Weissmann Curtis T. Hill, Jr.
Hoosier Appeals Attorney General of Indiana
Lawrenceburg, Indiana Christina D. Pace
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Frederico A. Conn, December 20, 2017
Appellant-Defendant, Court of Appeals Case No.
24A01-1703-CR-574
v. Appeal from the Franklin Circuit
Court
State of Indiana, The Honorable Clay M.
Appellee-Plaintiff. Kellerman, Judge
Trial Court Cause No.
24C02-1504-F6-297
Vaidik, Chief Judge, dissenting.
[23] I respectfully dissent. Conn did not have standing to challenge the evidence
under Article 1, Section 11 of the Indiana Constitution, and I disagree with the
majority’s conclusion that the State failed to raise this issue in the trial court.
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[24] The test for standing under Article 1, Section 11 was established by the Indiana
Supreme Court in Peterson v. State, 674 N.E.2d 528 (Ind. 1996). In that case, a
defendant charged with two murders challenged the search of his mother’s
apartment. The defendant had previously stayed in a bedroom in the apartment
(his mother kicked him out the day before the search), and in the closet of that
bedroom officers found a sawed-off shotgun. The shotgun was later found to
have fired a spent casing recovered at the murder scene. The defendant argued
that the admission of the gun into evidence violated the Fourth Amendment
and Article 1, Section 11.
[25] Regarding the Fourth Amendment, the Court explained that a defendant
challenging a search has the burden to demonstrate that he had a legitimate
expectation of privacy “in the premises searched.” Id. at 532. The defendant
noted that “he had been living in and had property in the searched room,” but
the Court concluded, “While the defendant had previously lived in the room
which was searched, at the time of the search, the defendant had no control or
ownership in the premises searched.” Id. at 533. As such, the defendant had
“no reasonable expectation of privacy” and therefore lacked standing under the
Fourth Amendment. Id. at 534.5
5
I acknowledge that the U.S. Supreme Court has gone away from the concept of “standing” in the Fourth
Amendment context. See Allen v. State, 893 N.E.2d 1092, 1096 (Ind. Ct. App. 2008) (discussing U.S.
Supreme Court’s conclusion that analysis of defendant’s alleged privacy interest is better framed as issue of
substantive Fourth Amendment law than issue of “standing”), reh’g denied, trans. denied. However, the
Indiana Supreme Court has continued to use the term for ease of reference in cases that involve both the
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[26] The Court then addressed Article 1, Section 11. After reviewing the historical
treatment of the provision, the Court held that a defendant can establish
standing by demonstrating “ownership, control, possession, or interest” in
either the premises searched (as under the Fourth Amendment) or “the
property seized.” Id. at 534. However, the Court’s subsequent discussion of the
case before it made clear that standing based on “the property seized” only
allows for challenges to the actual seizure of the property, not to any entry that
made the seizure possible. Specifically, the Court concluded that the
defendant’s admitted possessory interest in the gun gave him standing to
challenge its seizure, but, “[a]s noted in our prior discussion [regarding the
Fourth Amendment], the defendant does not have standing to challenge the
entry into his former bedroom and closet. He has shown no ownership,
control, possession or interest in the premises searched.” Id. at 534-35
(emphasis added). Ultimately, although the defendant had standing to
challenge the seizure of the gun, the Court affirmed the trial court’s rejection of
that challenge because the gun was in open view in the closet and was illegal (at
the time, possession of a sawed-off shotgun was prohibited in Indiana). Id. at
535.
[27] So what good does “property seized” standing do for a criminal defendant if it
does not permit challenges to the initial entry into the premises searched? The
Fourth Amendment and Article 1, Section 11, see, e.g., Campos v. State, 885 N.E.2d 590 (Ind. 2008), and I do
the same here.
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final paragraph of the Peterson Court’s standing discussion illustrates one
possibility. The Court noted that while one officer had testified that the gun
was in open view in the closet, another had testified that it was found in a duffel
bag. Though the Court deferred to the trial court’s finding that the gun was in
open view, the fact that the Court discussed the issue implies that if the officers
had found the gun in a duffel bag claimed by the defendant, the defendant may
have been able to make out an Article 1, Section 11 violation. See also State v.
Friedel, 714 N.E.2d 1231, 1236 (Ind. Ct. App. 1999) (holding that defendant
had standing to challenge search of her purse even if she did not have standing
to challenge search of van in which purse was found).
[28] Here, Conn did not establish either “premises searched” standing or “property
seized” standing. Regarding the premises, he did not present any evidence that
he was an “owner” of the club, that he was a member of the club, that he was
an invited guest, or that he had any sort of permission to be on the club’s
property. For all we know, Conn was a trespasser on the night of his arrest.
Therefore, he had no standing to challenge the officers’ initial entry onto club
property. See Peterson, 674 N.E.2d at 534.6
[29] And to the extent Conn asserts “property seized” standing, that claim fails as
well. He has never claimed or admitted any sort of interest in the
methamphetamine or the paraphernalia. In fact, there is evidence that he
6
For the same reason, I would also affirm the trial court’s rejection of Conn’s claim under the Fourth
Amendment. See Peterson, 674 N.E.2d at 532-33.
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specifically denied any knowledge of those items. See Tr. p. 108. As for the
gun, while Conn admitted on the scene and in a post-arrest interview that he
had possessed the gun momentarily for purposes of hiding it behind the
building, there is no evidence that he had any possessory interest in the gun
after he did so. The prosecutor told the judge outside the presence of the jury
that Officer Hagerty was prepared to testify that the gun belonged to a woman
who was at the club with Conn and that Conn said he was hiding it for her. Tr.
pp. 38-43. Conn did not present any evidence to contradict this version of
events, so he cannot claim that he had any continuing interest in the gun at the
time the officers recovered it.7
[30] The majority does not address whether Conn had standing to make an Article
1, Section 11 claim, concluding instead that the State failed to raise the issue in
the trial court and therefore waived it for purposes of appeal. I disagree. When
Conn first objected to the evidence, the prosecutor pointed out that “there’s
been no evidence that the Defendant has any kind of reasonable expectation of
privacy on private property whether it’s his or had any right to be there.” Tr. p.
37. The majority acknowledges this argument but holds that it went only to
7
Of course, Conn’s failure to claim a possessory interest in the items, either at trial or on appeal, may have
something to do with the fact that he was charged with illegally possessing those exact items. See, e.g., Person
v. State, 764 N.E.2d 743, 749 (Ind. Ct. App. 2002) (explaining that defendant challenging search of house and
seizure of gun, in case charging unlawful possession of a firearm by a serious violent felony, denied
ownership of gun “for obvious reasons”), trans. denied; Mays v. State, 719 N.E.2d 1263, 1267 (Ind. Ct. App.
1999) (explaining that defendant challenging search of apartment building atrium and seizure of cocaine, in
case charging possession of cocaine, did not admit possessory interest in cocaine “for obvious reasons”),
trans. denied.
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Conn’s Fourth Amendment claim. Slip op. at 2 n.2 (citing Litchfield v. State, 824
N.E.2d 356, 359 (Ind. 2005)).
[31] But to the extent that the prosecutor’s response was limited to Conn’s lack of an
interest in the premises, it was commensurate with Conn’s own limited
objection, which asserted only that the officers acted unconstitutionally by
“entering onto private property.” Tr. p. 36. Conn’s objection made no mention
of the officers’ actions after they passed the locked gate, such as moving the
boards and leaves that were covering the items or opening the coin purses.
Where a defendant challenges the entry into the premises searched, our
Supreme Court’s decision in Peterson teaches that the standing analysis under
Article 1, Section 11 is no different than the analysis under the Fourth
Amendment. See 674 N.E.2d at 534 (indicating that conclusion that defendant
had “no reasonable expectation of privacy,” and therefore no standing, under
Fourth Amendment was dispositive of “premises searched” standing under
Article 1, Section 11); see also Allen v. State, 893 N.E.2d 1092 (Ind. Ct. App.
2008) (noting that there is not “much of a difference, if any, in result” regarding
standing under Fourth Amendment and Article 1, Section 11 “when a
defendant’s interest in seized property is not at issue”), reh’g denied, trans. denied.
In short, because Conn’s objection focused on the officers’ initial entry onto
club property, the prosecutor’s statement that Conn had failed to establish that
he had “any kind of reasonable expectation of privacy on private property,”
that “it’s his,” or that he “had any right to be there” served to challenge Conn’s
standing under both the Fourth Amendment and Article 1, Section 11.
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Therefore, the State did not waive the issue and has properly raised it on
appeal.
[32] To be clear, I acknowledge that the officers’ conduct in this case was
constitutionally suspect. I simply conclude that Conn has not shown that he is
entitled to challenge that conduct. As such, I would hold that the trial court
properly admitted the challenged evidence and would affirm Conn’s
convictions.
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