USA v. Jeffrey Burney
OPINION and JUDGMENT filed : The judgment of the district court is AFFIRMED. Decision for publication. Alan E. Norris, John M. Rogers (AUTHORING), and Helene N. White (DISSENTING), Circuit Judges.
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 15a0030p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Appeal from the United States District Court
for the Southern District of Ohio at Dayton.
No. 3:12-cr-00151-2—Thomas M. Rose, District Judge.
Decided and Filed: February 19, 2015
Before: NORRIS, ROGERS, WHITE, Circuit Judges.
ON BRIEF: Kevin M. Schad, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Cincinnati,
Ohio, for Appellant. Brent G. Tabacchi, UNITED STATES ATTORNEY’S OFFICE, Dayton,
Ohio, for Appellee.
ROGERS, J., delivered the opinion of the court in which NORRIS, J., joined. WHITE, J.
(pp. 9–13), delivered a separate dissenting opinion.
ROGERS, Circuit Judge. When police officers executed a search warrant at the 2044
Litchfield Avenue residence in Dayton, Ohio, they found Jeffrey Burney, a number of handguns,
and several ounces of crack cocaine inside. Convicted of possessing crack cocaine with intent to
distribute it, Burney appeals on the sole ground that the warrant underlying the search was not
United States v. Burney
supported by probable cause. The affidavit supporting the warrant provided several strong
indications that the residence was used as a stash house by a drug trafficking operation, and that
the house had been unoccupied for more than eight months when Burney, a repeat drug convict,
moved in a few weeks before officers obtained the warrant. Because the warrant affidavit
presented sufficient evidence tying the property, if not Burney himself, to an ongoing drug
trafficking and money laundering operation, and because that evidence, taken as a whole, was
sufficiently reliable, the district court properly denied Burney’s motion to suppress.
From October 2011 through July 2012, a drug task force in Montgomery County, Ohio
investigated Dion Ross and several of his associates for operating a drug trafficking and money
laundering ring in the Dayton metro area. In the course of its investigation, the task force
collected information from reliable confidential informants, made controlled buys of cocaine
from Ross and his associates, and conducted extensive surveillance of properties the task force
suspected Ross was using as “stash houses”—places to store bulk quantities of drugs, firearms,
and cash associated with his drug trafficking and money laundering operation.
An analysis of financial records and public documents led the task force to conclude that
Djuna Brown-Jennings played an integral role in Ross’s criminal enterprise, laundering drug
proceeds for Ross and fraudulently hiding his assets—including multiple homes and cars—in her
name. Despite the relatively modest income she reported on her state tax returns, BrownJennings held title to 16 vehicles, including multiple newer, high-end cars. Between 2010 and
2012, she applied for temporary license tags for nine additional vehicles, including several cars
titled to a business Ross owned. County records also showed that Brown-Jennings owned and
received utility bills for multiple homes in the Dayton metro area. Based on the disparity
between her reported income and the assets she controlled, task force members concluded that
Brown-Jennings was merely a nominee owner of those properties, and that she held title to them
as a “front” for Ross.
Officers’ suspicions about the link between Ross and Brown-Jennings were buttressed by
evidence that Ross used property—such as cell phones, cars, and homes—registered to BrownJennings in trafficking cocaine. For instance, during a series of controlled buys from Ross and
his associates, a confidential informant repeatedly contacted Ross on a cell phone registered to
United States v. Burney
Brown-Jennings. On at least one such occasion, Ross drove a car registered to Brown-Jennings
to a drug deal with the confidential informant.
One of the properties to which Brown-Jennings held title was located at 2044 Litchfield
Avenue (“the Litchfield property”). In the course of its investigation, the task force came to
suspect that the Litchfield property was one of Ross’s stash houses.
This suspicion was
supported by several pieces of evidence. First and foremost, Brown-Jennings held title to the
property and the utilities for it were in her name, even though she did not live there. Indeed, for
months during the task force’s investigation, the Litchfield property appeared to be totally
Additionally, on October 19, 2011, after a confidential informant arranged a
cocaine buy with Ross, task force officers saw Ross enter and promptly exit the Litchfield
residence, from which he drove to the meet location and delivered more than 100 grams of
cocaine to the confidential informant.
Following the October 19 controlled buy, officers
conducted spot checks of the Litchfield property and repeatedly observed Ross’s cars parked in
During June 2012, officers noticed that a truck registered to Jeffrey Burney was
sometimes parked at the Litchfield property. Searches of several law enforcement databases
showed that Burney had recently listed the Litchfield property as his residence on certain legal
documents. Those same searches also revealed that Burney had been convicted of five drug
offenses in the past decade and was even then on parole for one such offense.
On June 30, 2012, after more than eight months’ investigation, task force officers
presented a judge of the Montgomery County Court of Common Pleas with a 17-page affidavit
for a warrant to search the Litchfield property. The affidavit detailed the task force’s reasons for
believing Ross was using the property as a stash house. After reviewing the affidavit, which
included all of the information set out above, see United States v. Burney, No. 3:12-cr-151, doc.
# 74, the judge issued the warrant.1 A few days later, police executed the search warrant at the
The main portion of the affidavit dealing specifically with the Litchfield property provides as follows:
The Affiant found that Djuna Brown is the listed owner of this property and the
[utilities] account at this location is in her name (see paragraph K). Through the
Affiant’s investigation, the Affiant has learned that Dion Ross often uses assets in
Djuna Brown’s name, including vehicles, houses, and cell phones. (see paragraphs
R, V, and SS section 4)
United States v. Burney
Litchfield property. Inside the residence, they discovered Burney, multiple firearms, and several
ounces of cocaine.
Burney was indicted on three counts, including being a felon in possession of a firearm
and possessing crack cocaine with intent to distribute it. Before trial, he moved to suppress
evidence of the handguns and drugs officers found in their search of the Litchfield property,
contending that the underlying warrant was not based on probable cause. The district court
denied the motion, prompting Burney to enter a conditional guilty plea to the charge of
possessing crack cocaine with intent to distribute it. The district court sentenced Burney to
60 months of imprisonment and 60 months of supervised release.
Burney now appeals,
challenging the court’s denial of his motion to suppress.
Whether an affidavit contains evidence sufficient to establish probable cause depends on
whether it establishes “a nexus between the place to be searched and the evidence to be sought.”
United States v. Carpenter, 360 F.3d 591, 594 (6th Cir. 2004) (en banc). In this case, the
requisite nexus was supplied principally by the Litchfield property’s persistent connections to
During a controlled narcotics purchase from Dion Ross in October of 2011, the
Affiant observed Dion Ross leave 2044 Litchfield Avenue and drive directly to the
buy location, where Ross delivered an amount of powder cocaine to [a confidential
informant]. (see paragraph V)
Since October of 2011, the Affiant has conducted surveillance of 2044 Litchfield
Avenue several times, at various times of day and night. On several occasions, the
Affiant has observed vehicles that he knew Dion Ross to be driving parked in the
driveway of the residence. For several months, it did not appear to the Affiant that
anyone was residing at 2044 Litchfield Avenue, as the house appeared to be vacant
from the street.
In June of 2012, the Affiant and other members of the RANGE Task Force observed
a red 2003 Ford truck bearing Ohio registration FOM9952 parked in the driveway of
2044 Litchfield Avenue several times, most recently on June 30th, 2012.
Upon checking the registration through [a law enforcement database], the Affiant
found that the vehicle was registered to one Jeffery L. Burney B/M DOB/[redacted],
SOC [redacted], with an address of 2044 Litchfield Avenue. Upon checking Burney
through various law enforcement databases, the Affiant found that Burney is
currently on parole through the State of Ohio for Possession of Drugs (crack) and
Felonious Assault. The Affiant also found that Burney has at least four previous
convictions for Possession of Crack in Montgomery County [case numbers omitted].
The Affiant requests the court’s permission to search 2044 Litchfield Avenue in the
City of Dayton as the Affiant believes that this is a possible “stash” house of Dion
United States v. Burney, No. 3:12-cr-151, doc. # 74, at 10.
United States v. Burney
Ross and Brown-Jennings, who police had reason to suspect were cooperating in a drug
trafficking and money laundering operation. After more than eight months of investigation, the
task force concluded that Ross operated several stash houses in the Dayton metro area, and the
task force had ample basis for believing the Litchfield property was one of them. For one thing,
Brown-Jennings held title to the Litchfield property and the utilities for it were in her name.
Police knew Brown-Jennings served as a front for Ross’s drug trafficking and money laundering
operation, purchasing and holding assets for Ross—including homes and vehicles—in her name.
Thus, Brown-Jennings’ ownership of the Litchfield property strongly suggested a connection
between the property and Ross’s illicit operation.
Police had also repeatedly spotted Ross and his vehicles at the Litchfield property, both
during and after the October 19 controlled buy at which Ross drove directly from the Litchfield
property to the scene of the exchange. Ross’s frequent presence at the property was all the more
probative of unlawful activity because title to the property was not in his name and, for months
during the investigation, the property had no known tenant that Ross might have been visiting.
The only occupant ever identified in the affidavit was Burney, who apparently moved in just a
few weeks before the search warrant issued (and, perhaps not coincidentally, on the eve of
Ross’s receiving a sizable shipment of drugs, as described in the affidavit at paragraphs PP–RR).
Not only did Burney have several drug convictions to his name, he was on parole for one such
conviction when he began listing the Litchfield property as his residence. His presence at the
Litchfield property would only further support the conclusion that the property was affiliated
with illicit drug trafficking.
The above-recited facts from the affidavit—considered together, as they must be, see
United States v. Jackson, 470 F.3d 299, 306 (6th Cir. 2006)—constitute probable cause to search
the Litchfield property. That is particularly true in light of both the “great deference” we owe the
magistrate judge’s probable cause assessment, United States v. Greene, 250 F.3d 471, 478 (6th
Cir. 2001), and the Supreme Court’s recent statement that, “Probable cause . . . is not a high bar:
It requires only the kind of fair probability on which reasonable and prudent people, not legal
technicians, act.” Kaley v. United States, 134 S. Ct. 1090, 1103 (2014). The facts recited in the
warrant affidavit established just that type of “fair probability”: the Litchfield property was
United States v. Burney
owned by Ross’s principal “front”; Ross had repeatedly visited the property, including once just
before a controlled buy with a confidential informant; the property had sat suspiciously
unoccupied for months on end; and the new tenant at the property had a lengthy history of drug
None of Burney’s arguments undermines the conclusion that probable cause existed here.
It is true that Burney was the sole occupant of the otherwise vacant Litchfield property, that the
affidavit did not link him to Ross, and that the affidavit contained no evidence that Burney was
involved in Ross’s operation. But the pertinent question in this case is not whether officers had
cause to search the Litchfield property because it was Burney’s residence, nor whether they had
cause to suspect Burney of working with Ross. “The critical element in a reasonable search is
not that the owner of the property is suspected of crime but that there is reasonable cause to
believe that the specific ‘things’ to be searched for and seized are located on the property to
which entry is sought.”
Zurcher v. Stanford Daily, 436 U.S. 547, 556 (1978).
determining whether the warrant affidavit supplied probable cause, the only relevant question is
whether the affidavit gave a reasonable basis for believing there were drugs or evidence of drug
trafficking at the Litchfield property. Ross’s and Brown-Jennings’ many connections to the
property, together with its having sat vacant for months and only recently having been occupied
by a man with multiple drug convictions, made it reasonable to conclude that the property was
one of Ross’s stash houses, so that there would be evidence of drug trafficking within it. This is
so regardless of whether police had any evidence tying Burney to Ross. The fact that Burney
was only mentioned in one paragraph of the affidavit is not determinative—it was the Litchfield
property, not Burney, that was the subject of the affidavit.
The evidence linking the Litchfield property to Ross’s drug trafficking operation was also
not “stale.” Burney points out that the last time police saw Ross in person at the Litchfield
residence was eight months before the warrant was obtained. In fact, police had, on more recent
occasions, seen Ross’s vehicles parked at the Litchfield residence. That they did not observe
Ross in the flesh on those occasions does not mean they could not reasonably conclude he was
inside the Litchfield property in each instance.
United States v. Burney
The bare fact that a piece of evidence is months old, moreover, does not automatically
make it stale. Rather than imposing arbitrary, inflexible deadlines, the staleness inquiry turns on
four practical, fact-dependent considerations:
(1) the character of the crime (chance encounter in the night or regenerating
conspiracy?), (2) the criminal (nomadic or entrenched?), (3) the thing to be seized
(perishable and easily transferrable or of enduring utility to its holder?), and
(4) the place to be searched (mere criminal forum or secure operational base?).
United States v. Frechette, 583 F.3d 374, 378 (6th Cir. 2009). In this case, all four of those
considerations militate in favor of finding the relevant evidence sufficiently non-stale. First, the
crime at issue—a large-scale drug trafficking and money laundering operation—is a
regenerating, enduring criminal enterprise that bears no resemblance to a “chance encounter in
the night.” Second, the criminal under investigation—Ross—was firmly entrenched in the
Dayton metro area. By its very nature, his drug trafficking operation, relying as it did on an
established network of distributors and customers, was not the kind of nomadic or sporadic
criminal enterprise likely to up-and-vanish under cover of darkness. Third, the evidence to be
seized under the warrant was not perishable in the way that, for example, a few crack rocks are
perishable. On the contrary, the evidence to be seized in this case included anything tending to
show that the Litchfield property was being used as a stash house. Unlike evidence of drug
possession, evidence that a residence is being used as a stash house is unlikely to be consumed or
to disappear, precisely because that evidence—scales, weapons, safes, bagging materials, and the
like—is not readily consumable and is “of enduring utility to its holder.” Finally, a stash house
is, by definition, a “secure operational base,” rather than a “mere criminal forum.” For all those
reasons, evidence of Ross’s use of the Litchfield property was not stale when it was presented as
part of the warrant affidavit here at issue.
It is true that, in United States v. Brooks, 594 F.3d 488, 493 (6th Cir. 2010), we noted in
dictum that, “Given the mobile and quickly consumable nature of narcotics, evidence of drug
sales or purchases loses its freshness extremely quickly.” But the affidavit in this case did not
suggest that police sought evidence of specific drug sales or purchases at the Litchfield property.
Instead, the thing to be seized in this case was evidence that the property was being used on an
ongoing basis as part of a drug trafficking operation. That evidence, for the reasons set out
United States v. Burney
above, was much less likely to disappear than is evidence of drug sales, purchases, or possession.
The language from Brooks—and other cases where police sought evidence of specific drug
transactions or instances of possession—is therefore inapposite.
The evidence of Ross’s use of the Litchfield property also did not become stale simply
because Burney had apparently taken up residence at the property only a few weeks before the
warrant issued. Brown-Jennings continued to hold title to the Litchfield property and receive
utility bills for the property at the time the warrant issued. Thus, a key link between Ross’s
criminal enterprise and the Litchfield property remained in place throughout Burney’s residency.
Furthermore, to find that Burney’s residency erased all ties between the property and
Ross’s drug trafficking operation would require a court to ignore what the affidavit revealed
about Burney. As the affidavit explained, officers knew that the Litchfield property’s new
resident had an extensive rap sheet, including five recent convictions for possessing crack
cocaine, the very substance in which Ross trafficked. Indeed, when the warrant issued, Burney
was still on parole for one such conviction. That Burney had begun claiming the Litchfield
property as his residence sometime in June 2012 could not, then, as a matter of common sense,
have done anything to reduce the likelihood of ongoing illicit drug activity inside the property.
As the Supreme Court stated in Illinois v. Gates, 462 U.S. 213, 238 (1983), a magistrate judge’s
task when deciding whether to issue a warrant “is simply to make a practical, common-sense
The warrant affidavit supplied probable cause to search the Litchfield property, so that
the district court did not err in denying Burney’s motion to suppress. Because the warrant was
supported by probable cause, we need not address the parties’ arguments concerning the goodfaith exception to the warrant requirement from United States v. Leon, 468 U.S. 897 (1984), or
Burney’s status as a parolee.
The judgment of the district court is AFFIRMED.
United States v. Burney
HELENE N. WHITE, Circuit Judge.
I respectfully dissent.
The majority fails to
appreciate the significance of Burney’s moving into the Litchfield property and wrongly imputes
Ross’s alleged bad acts to Burney by relieving the Government of the obligation to show
probable cause to believe that the property was still used as a “stash house” after Burney moved
in. I would reverse the denial of Burney’s suppression motion and vacate his guilty plea.
The affidavit dated June 30th, 2012, covered seventeen pages, pertained to seven
residences, and was entirely premised on Ross’s alleged criminal enterprise. As the majority
acknowledges, Burney was mentioned only one time, and only in relation to the Litchfield
The pertinent section of the affidavit consists of three statements regarding the
3. Since October of 2011, the Affiant has conducted surveillance of 2044
Litchfield Avenue several times, at various times of the day and night. On several
occasions, the Affiant has observed vehicles that he knew Dion Ross to be driving
parked in the driveway of the residence. For several months, it did not appear to
the Affiant that anyone was residing at 2044 Litchfield Avenue, as the house
appeared to be vacant from the street.
4. In June of 2012, the Affiant and other members of the RANGE Task Force
observed a red 2003 Ford truck bearing Ohio registration FOM9952 parked in the
driveway of 2044 Litchfield Avenue several times, most recently on June 30th,
5. Upon checking the registration through [a law enforcement database], the
Affiant found that the vehicle was registered to [Burney] with an address of 2044
Litchfield Avenue. Upon checking Burney through various law enforcement
databases, the Affiant found that Burney is currently on parole through the State
of Ohio for Possession of Drugs (crack) and Felonious Assault. The Affiant also
found that Burney has at least four previous convictions for Possession of Crack.
United States v. Burney
The affidavit is fraught with ambiguity, and the issuing magistrate should have demanded
clarity before authorizing a search of Burney’s home. Nevertheless, the majority implies facts
that are not supported by the record. For example, a material ambiguity in the affidavit stems
from Officer McCoy’s statement that he saw vehicles associated with Ross at the property
“several times” since October 2011.
It is impossible to know how many times “several”
indicates, or when he saw these cars (i.e., just prior to Burney moving in or only in November
2011). Nevertheless, the majority concludes: “Following the October 19th controlled buy,
officers conducted spot checks of the Litchfield property and repeatedly observed Ross’s cars
parked in the driveway.” This gives the unsupported impression that Ross’s cars were present at
the Litchfield property as a matter of course in the months following October 2011. Ambiguous
as it may be, the affidavit suggests that the vehicles associated with Ross stopped appearing at
the property some “several month” period prior to June 2012. And, Officer McCoy’s testimony
confirms that the majority’s conclusion is incorrect: no vehicles were seen at the property for at
least “several months” prior to June 2012. Thus, at a minimum, several months went by where
there was no indication that Ross or his associates were using the Litchfield property at all, much
less as a “stash house.”
This faulty inference matters; that the house appeared to be occupied and visited by Ross
or his associates, then went through a “several month” period of being unoccupied and unvisited,
and then was occupied again (by Burney) in June 2012 leads to the conclusion, or at minimum
raises the very significant probability, absent evidence to the contrary, that drug activity Ross or
his associates may have conducted at the house had ceased.
It is undisputed that Burney had a reasonable expectation of privacy in the Litchfield
property. Accordingly, the officers needed a properly supported warrant to search his home.
See, e.g., Kentucky v. King, 131 S. Ct. 1849, 1856 (2011). For the warrant to be valid, the
affidavit had to establish probable cause to believe that evidence of criminal activity would be
United States v. Burney
found at the property notwithstanding the officers’ observations supporting that possession of the
property had changed hands. See, e.g., United States v. Hython, 443 F.3d 480, 486 (6th Cir.
2006) (“Even had the affidavit stated that from time out of mind [the location under
investigation] had been a notorious drug den, some recent information would be necessary to
eliminate the possibility that a transfer in ownership or a cessation of illegal activity had not
At bottom, the majority’s decision hinges on Ross’s de facto ownership of the Litchfield
property through Brown-Jennings. In explaining how the affidavit supported the search warrant,
the majority states: “First and foremost, Brown-Jennings held title to the property and the
utilities for it were in her name, even though she did not live there.” But as the majority
acknowledges, “The critical element in a reasonable search is not that the owner of the property
is suspected of crime but that there is reasonable cause to believe that the specific ‘things’ to be
searched for and seized are located on the property to which entry is sought.” Zurcher v.
Stanford Daily, 436 U.S. 547, 556 (1978). Had Burney not moved into the property, there would
be no problem searching the property based on the observations in the warrant. But, Burney’s
moving in and listing the property as his residence after it was unoccupied signaled a change of
possession and control and, therefore, a more thorough review of the affidavit was required to
ensure that Burney’s constitutional rights were not violated. See Hython, 443 F.3d at 486.
Brown-Jennings’s title to the Litchfield property would not support a search without some
indication that she or Ross continued to have a connection to the premises other than mere title.
The majority necessarily assumes that Ross’s use of the property continued despite
Burney’s moving in.
Without some indication that Ross’s use of the Litchfield property
continued after Burney moved in, there is no justification for treating the change of residence as
insignificant. See id. As in Hython, given the length of time between the alleged criminal
activity and the application for the search warrant, coupled with Burney’s newly established
residence at the property, “there is absolutely no way to begin measuring the continued existence
of probable cause.” Id. (citing United States v. Williams, 480 F.2d 1204, 1205 (6th Cir. 1973)).
This renders the warrant invalid.
United States v. Burney
The majority suggests that because the timing of Burney’s arrival loosely coincided with
an alleged imminent drug transaction orchestrated by Ross, it was more reasonable to search the
Litchfield property. Burney moved into the Litchfield property in early-June 2012; the cocaine
shipment that prompted the search was allegedly supposed to arrive in the Dayton area on June
30, 2012, and was not linked to a particular location (and certainly not the Litchfield property).1
It cannot fairly be said that Burney’s appearance at the property, nearly a month before an
alleged cocaine shipment was scheduled to arrive at an unknown location somewhere in the
Dayton metro area, established a “fair probability” that Burney had taken up residence to assist
in the drug distribution, especially when there is nothing tying him to drug distribution, Ross’s
enterprise, or any other part of the conspiracy.
Because at the time the warrant was obtained Burney was the sole occupant of the
Litchfield property and the affidavit offered no reason to believe that criminal activity was still
afoot at the home, I would find the warrant invalid.
Burney must also show that the affidavit was so facially defective that no reasonable
officer could have relied on it. Even if later held to be invalid, as a general matter, an officer
may rely on a facially valid warrant, United States v. Leon, 468 U.S. 897, 920 (1984); but Leon’s
good-faith exception does not apply if, inter alia, the officer’s reliance on the warrant was not in
good faith or objectively reasonable, id. at 923.
At the suppression hearing, Officer McCoy, who was both the affiant and on the team
executing the warrant, testified that the confidential informants he had worked with “did not
mention anything about Jeffrey Burney to [him]”; that he had not seen any activity at the house
after October 2011 other than cars occasionally parked in the driveway; that he “didn’t think
In the proceedings below and in its brief on appeal, the Government makes clear that the search warrant
was based on an impending shipment expected to arrive somewhere in Dayton on June 30, 2012: “Based on Ross’s
tacit representations that he soon expected to receive a shipment of drugs [on June 30, 2012], police conducted
surveillance at several stash houses – including the Litchfield residence.” According to the Government, “Given the
timing of these events, a fair probability existed that Mr. Burney had arrived at a location Ross owned to assist in the
distribution of the impending shipment of cocaine.” Thus, it is clear that the affidavit’s reference to a “large load of
cocaine” that had been seized on June 24, 2012 was not the basis for obtaining the search warrant, and there is no
other basis in the affidavit to support the majority’s conclusion that Burney’s continued presence at the Litchfield
residence was premised on “Ross’s receiving a sizeable shipment of drugs.” The majority reads more into the
affidavit than is warranted.
United States v. Burney
anybody was living” at the Litchfield property for a several month period; that he was aware
Burney had claimed the Litchfield property as his home in early-June 2012, nearly a month
before the search warrant was obtained; and that he had not observed Burney do anything illegal.
Officer McCoy did not offer any basis to conclude that Burney was part of Ross’s enterprise, that
criminal activity had occurred at the Litchfield property after Ross’s visit in October 2011, or
that Burney was only using part of the home (meaning the remainder was still under Ross’s
control). Accordingly, Officer McCoy could not reasonably believe that he had probable cause
to search the Litchfield property; thus, he could not rely on the warrant’s facial validity and the
Leon good-faith exception does not apply.
For these reasons, I would reverse the district court’s suppression ruling and vacate
Burney’s guilty plea.
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