Overton v. Schuwerk et al
Filing
44
OPINION entered by Judge Colin Stirling Bruce on 7/22/2014. The Defendants' Motion for Summary Judgment is GRANTED, d/e 36 . All pending motions are denied as moot, and this case is terminated, with the parties to bear their own costs. (MAS, ilcd)
E-FILED
Tuesday, 22 July, 2014 09:33:25 AM
Clerk, U.S. District Court, ILCD
IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
JERALD OVERTON,
Plaintiff,
v.
SCHUWERK, et al.,
Defendants.
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No. 11-CV-3263
OPINION
COLIN STIRLING BRUCE, U.S. DISTRICT JUDGE.
Plaintiff, proceeding pro se, pursues constitutional claims
arising from a traffic stop, Plaintiff's arrest, the seizure and
searches of Plaintiff's vehicle, and alleged damage to Plaintiff's
vehicle during the searches. Defendants move for summary
judgment, which is granted for the reasons below.
FACTS
The facts are set forth in the light most favorable to Plaintiff,
drawing reasonable factual inferences in Plaintiff's favor and
resolving credibility disputes in Plaintiff's favor. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986).
On March 19, 2009, shortly before 3:00 p.m., Plaintiff was
driving a 1997 blue Jaguar from Kansas City to Chicago to attend
Page 1 of 21
an aunt's funeral. Plaintiff's wife at the time was in the passenger
seat.
Defendant Vahle, an Illinois State Trooper, was sitting in his
trooper car on the highway median when he saw Plaintiff drive by.
Officer Vahle observed that Plaintiff's car had no front license plate
and that the driver's side window was tinted. Officer Vahle pulled
out onto the highway and up next to Plaintiff's car, where Vahle
observed through a partially open driver's side window that air
fresheners were hanging from the rear view mirror. Vahle avers
that the air fresheners were "large objects" and "were materially
obstructing the driver's forward view from within the vehicle."
(Vahle Aff. para. 8.) In his field report, Vahle numbered the air
fresheners hanging from the rear view mirror as eight, (Vahle Field
Report, d/e 1-1, p. 1), but Plaintiff contends that only two air
fresheners were hanging and that they were not obstructing his
view. Officer Vahle also observed a clear plastic cover over the rear
registration plate as he pulled up to Plaintiff's vehicle. (Vahle Field
Report, d/e 1-1, p. 1.)
Officer Vahle pulled Plaintiff over and approached Plaintiff's
car. As Plaintiff produced his identification, registration, and
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insurance, Plaintiff told Officer Vahle that Plaintiff may have an old
outstanding arrest warrant issued by Cook County. Plaintiff
testified in his deposition that the warrant was for violating his
parole by moving out of state, from Illinois to Florida. At the time
he moved to Florida in or around 2002, he had been on parole for a
burglary conviction. (Pl.'s Dep. pp. 9-10; d/e 102, p. 16.) Officer
Vahle confirmed the existence of the arrest warrant. Vahle avers
that he was also informed "by an Illinois State Police dispatcher
that [Plaintiff] had a prior history of involvement in gangs and
weapons and was considered armed and dangerous." (Vahle Aff.
para. 16.) Plaintiff disputes that the information relayed to Vahle
was accurate, but Plaintiff does not dispute that this was the
information that was in fact relayed to Vahle.
Officer Vahle handcuffed Plaintiff and placed Plaintiff in the
front seat of the squad car. Defendant Cook, a State Trooper, and
Defendant Roll, a Master Sergeant, arrived to assist Officer Vahle.
Plaintiff's wife then stepped out of the vehicle as directed, and a
warrantless search ensued of Plaintiff's vehicle without Plaintiff's
consent.
Page 3 of 21
The search began under the hood and progressed to the trunk,
where the clothes of Plaintiff and his wife, including their
undergarments, were removed from plastic bags. (Pl.'s Dep. p. 67.)
Then the back and front seats were searched, and Defendants
looked underneath the car. Officer Vahle then searched the locked
glove box and found a loaded pistol.
Officer Vahle avers that, in addition to the loaded gun, the
following items were found during the warrantless search:
cannabis residue, multiple cell phones, laptop computers, multiple
air fresheners and cans of air fresheners (which Officer Vahle avers
are "often used to mask the presence of narcotics," tools "such as
wrenches and a cordless drill, which are items commonly used to
access secret compartments," "tooling marks on bolts and screws
within the passenger compartment which gave indicia that interior
parts of the car had been removed and replaced and could provide
access to secret compartments," and a "'key'" in the center console,
"which [Vahle believed was] an indicator of a secret compartment."
(Vahle Aff. para. 28.)
Plaintiff denies that any cannabis residue or tools were in the
car and denies any knowledge of a "key" or a secret compartment
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(Pl.'s Dep. 73.) He explains that the air fresheners were for his
business, which provided restroom attendant services to nightclubs
and restaurants. He asserts that both he and his wife carried a
personal cell phone and a business cell phone (four cell phones
altogether). He further asserts that the laptops were for his
business and his wife's work at the Federal Aviation Administration.
Both Plaintiff and his wife denied knowledge or ownership of
the gun. Plaintiff's wife, who is not a party to this action, was
arrested along with Plaintiff, and the two were taken to police
headquarters. According to Officer Vahle, Officer Douglas drove the
Plaintiff's vehicle to the headquarters instead of having it towed, on
the advice of the Pike County State's Attorney. (Vahle Aff. para. 41.)
After arriving at the Pike County Sheriff's Office, Plaintiff
admitted that the gun was his. Plaintiff's wife was released, and
Plaintiff was charged with being a felon in possession of a weapon.
He eventually pled guilty and was transferred to the Illinois
Department of Corrections to serve a sentence concurrent with the
probation violation.
According to Defendants, the next day, March 20, 2009, a dog
trained to detect narcotics alerted to the presence of narcotics in
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Plaintiff's vehicle by lying near the driver's side door. After the dog
alerted, Officer Vahle drafted a complaint for a search warrant to
search the vehicle for illegal drugs, including any secret
compartments. (d/e 1-1, p. 7.) The facts alleged included the items
Vahle says he found in the car set forth above and the dog alert.
Judge Roseberry signed the search warrant on the morning of
March 20, 2009. (d/e 1-1, p. 10.) After procuring the warrant,
Officer Vahle participated in searching the vehicle at the police
headquarters and then at Allen's Tire Service, where the
undercarriage of the vehicle was inspected. (Vahle Aff. para. 58-59.)
No illegal drugs were found, and the vehicle was released to
Plaintiff's wife.
DISCUSSION
I.
Defendants have not demonstrated that the statute
of limitations bars Plaintiff's claims.
Defendants argue that Plaintiff's claims are barred by the twoyear statute of limitations. Plaintiff's claims arose in March, 2009,
and he did not file this case until August, 2011, more than four
months late if no exceptions apply.
Page 6 of 21
The parties have focused on whether Plaintiff timely mailed his
complaint from prison, but it turns out the answer to that question
is not dispositive because of Plaintiff's case in the Illinois Court of
Claims. Plaintiff filed his Court of Claims case in November, 2010,
pursuing the same claims he pursues here. On July 24, 2013, the
Illinois Court of Claims dismissed Plaintiff's constitutional claims
for lack of subject matter jurisdiction. (d/e 42.)
Because Plaintiff initially filed his claims in the wrong forum,
statutory or equitable tolling may apply to extend the limitations
period. Hayes v. Hile, 527 Fed.Appx. 565 (7th Cir. 2013)(not
reported in F.3d)("Illinois grants a 1-year period to refile claims
dismissed by the Court of Claims for lack of subject-matter
jurisdiction."), citing 735 ILCS 5/13-217; Edwards v. Safer Found.,
Inc., 171 Ill.App.3d 793 (1988)(good faith but incorrect filing in
court of claims tolled statute of limitation in personal injury suit);
see also Clay v. Kuhl, 189 Ill.2d 603 (2000)("Equitable tolling . . .
may be appropriate if . . . the plaintiff has mistakenly asserted his
or her rights in the wrong forum.") Defendants do not address the
tolling issue and therefore have not met their burden of proving
their affirmative defense.
Page 7 of 21
II.
Officer Vahle had probable cause for the traffic stop
and for Plaintiff's arrest.
Officers need probable cause to believe a traffic violation,
however minor, has occurred in order to pull over a vehicle. U.S. v.
Taylor, 596 F.3d 373 (7th Cir. 2010); United States v. Hernandez–
Rivas, 513 F.3d 753, 759 (7th Cir.2008) (“[P]robable cause exists
when the circumstances confronting a police officer support the
reasonable belief that a driver has committed even a minor traffic
offense.”).
Plaintiff agrees that he had no front license plate, a tinted
driver's window, at least two air fresheners hanging from the rear
view mirror, and a clear cover over the rear license plate.
Certain kinds of tinted front windows are not permitted, 625
ILCS 5/12-503(a-5), but Officer Vahle does not elaborate on
whether or why he believed that Plaintiff's tinted windows violated
Illinois law. However, state law does prohibit items hanging from
the rear view mirror which materially obstruct the driver's view.
625 ILCS 5/12-503(c). "[A]ir fresheners may (or may not) constitute
material obstructions depending on their size, their position relative
to the driver's line of vision, and whether they are stationary or
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mobile." U.S. v. Garcia-Garcia, 633 F.3d 608, 615 (7th Cir. 2011).
The Court has no information on the size of the air fresheners, and
Plaintiff contends that his forward view was unobstructed, so the
Court cannot determine whether probable cause existed to pull
Plaintiff over for the air fresheners hanging from the rear view
mirror.
Plaintiff, however, admits to the rear license plate cover. At
the time of the stop, 625 ILCS 5/3-413(b) required the license plate
to be "clearly legible, free from any materials that would obstruct
the visibility of the plate, including, but not limited to, glass covers
and plastic covers." Clear plastic covers which did not obstruct the
plate's visibility had been allowed in an earlier version of the
statute, but that sentence had been deleted in a 2007 amendment.
Illinois Public Act 95-29, IL LEGIS 95-29 (2007). This change "was
to make it 'abundantly clear that clear license plate covers are
illegal'" because of concerns that the covers might help evade photo
radar and cameras. People v. Gaytan, 992 N.E.2d 17, 25 (2013),
appeal allowed, People v. Gaytan, 996 N.E.2d 18 (2013).1
1
This section was further amended in 2013 to remove the language "including but not limited to glass covers and
plastic covers" and to add a new subsection stating "a person may not operate any motor vehicle that is equipped
with registration plate covers." 625 ILCS 5/3‐413(g).
Page 9 of 21
Therefore, Plaintiff's clear cover on his rear license plate
provided probable cause for the initial traffic stop under 625 ILCS
5/3-413(b), even if the cover did not obstruct the plate's legibility.
Additionally, Plaintiff had no front license plate, which was also a
traffic violation under Illinois law. 625 ILCS 5/3-13(a)("Registration
plates issued for a motor vehicle . . . shall be attached thereto, one
in the front and one in the rear."). Plaintiff asserts that the real
reason he was pulled over was because of his race, but he offers no
evidence to support that conclusion.
The arrest warrant precludes a claim based on the traffic stop
in any event. "[A] person named in a valid warrant has no right to
be at large, and so suffers no infringement of his rights when he is
apprehended unless some other right of his is infringed, . . . ."
Atkins v. City of Chicago, 631 F.3d 823, 827 (7th Cir. 2011); U.S. v.
Johnson, 383 F.3d 538 (7th Cir. 2004)( "The officers' knowledge that
Johnson was wanted on an outstanding warrant constituted an
intervening circumstance, which gave officers probable cause to
arrest Johnson independent of the illegality of the initial unlawful
stop."); see also Banks v. Fuentes, 545 Fed. Appx. 518, 520-21 (7th
Cir. 2013)(not published in Federal Reporter)(dispute regarding
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whether traffic violation had occurred to justify stop was immaterial
because an investigative alert had already been issued regarding
the plaintiff). Plaintiff admits, and there can be no reasonable
debate, that probable cause existed to arrest him because of the
outstanding arrest warrant.
III.
The warrantless search of Plaintiff's vehicle met the
automobile exception and the search-incident-toarrest exception as defined by binding precedent
when the search occurred.
Absent an exception, police need a warrant to search a vehicle.
Arizona v. Gant, 556 U.S. 332 (2009)("'searches conducted outside
the judicial process, without prior approval by judge or magistrate,
are per se unreasonable under the Fourth Amendment—. . .
.'")(quoting Katz v. United States, 389 U.S. 347 (1967)). Two
exceptions to that rule are relevant here: the "search-incident-toarrest" exception and the "automobile exception."
The Supreme Court in Gant held that the search-incident-toarrest exception applies when "the arrestee is unsecured and within
reaching distance of the passenger compartment at the time of the
search" or when it is "'reasonable to believe evidence relevant to the
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crime of arrest might be found in the vehicle.'" Gant, 556 U.S. at
342.
In this case, Plaintiff was not within reach of the vehicle when
the warrantless search occurred. He was handcuffed and secured
in the patrol car. And, the warrantless search could not have
uncovered evidence relevant to Plaintiff's arrest on the outstanding
parole violation warrant. In short, the warrantless search of the
vehicle does not qualify under the search-incident-to-arrest
exception as defined by Gant.
However, the Court agrees with Defendants that qualified
immunity protects them from Plaintiff's claims arising from the
warrantless search of the vehicle. Gant was decided on April 21,
2009, one month after the events here. Gant significantly narrowed
the search-incident-to-arrest exception as understood in this
Circuit. Before Gant, the Seventh Circuit, as had other circuits,
had interpreted the Supreme Court case of New York v. Belton, 453
U.S. 454, 460 (1981), to permit warrantless searches of the
passenger compartment of vehicles incident to a lawful arrest
without regard to the location of the arrestee. U.S. v. Cartwright,
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630 F.3d 610, 613 (7th Cir. 2010)("At the time of this encounter
[August, 2008], our circuit allowed police to search a vehicle
incident to the driver's arrest even after having removed and
secured the driver."); United Stated v. Karlin, 852 F.2d 968 (7th Cir.
1988)(search of van's interior permissible incident to arrest even
though arrestee was handcuffed in police car). The passenger
compartment includes the front and back seats, the glove
compartment (whether locked or unlocked), the console, any
containers in the passenger compartment (whether open or closed),
secret compartments, and the trunk, if accessible from the
passenger compartment. See U.S. v. Arnold, 388 F.3d 237, 240 (7th
Cir. 2004)(protective search covered trunk which was accessible
from passenger compartment); New York v. Belton, 453 U.S. 454,
460-61 (1981), modified on other grounds by Gant.
When Plaintiff was arrested in March, 2009, a reasonable
officer would have believed that searching the vehicle without a
warrant was lawful because Plaintiff's arrest was lawful. Gant, 556
U.S. at 350 n. 11 ("Because a broad reading of Belton has been
widely accepted, the doctrine of qualified immunity will shield
officers from liability for searches conducted in reasonable reliance
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on that understanding."); Phillips v. Community Ins. Corp., 678 F.3d
513, 528 (7th Cir. 2012)("Qualified immunity protects an officer from
liability if a reasonable officer could have believed that the action
taken was lawful . . . ."). Defendants are protected by qualified
immunity regarding their search of the passenger compartment,
including the glove box.
The vehicle's "passenger compartment" arguably does not
include the hood, the trunk (assuming the trunk was not accessible
from the passenger compartment), or the trunk's contents. See
New York v. Belton, 453 U.S. 454, 460 and n.4 (1981)(searchincident-to-arrest exception does not apply to trunk). But it does
not matter, because the automobile exception also applies. The
automobile exception allows the warrantless search of any part of
the vehicle in which contraband might reasonably be found,
including the trunk and the hood. United States v. Nicksion, 628
F.3d 368, 377 (7th Cir.2010); U.S. v. Zahursky, 580 F.3d 515, 523
(7th Cir. 2009); U.S. v. Alexander, 573 F.3d 465 (7th Cir. 2009).
The automobile exception applies here because probable cause
existed to believe that Plaintiff's vehicle contained contraband,
namely a weapon or weapons. U.S. v. Slone, 636 F.3d 845, 848 (7th
Page 14 of 21
Cir. 2011)(Probable cause existed if, "based on a totality of the
circumstances 'there [was] a fair probability that contraband or
evidence of a crime [would] be found in a particular place.'") United
States v. Zahursky, 580 F.3d 515, 521 (7th Cir.2009) (quoting
Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527
(1983)). Plaintiff does not dispute that Officer Vahle was "provided
information by an Illinois State Police Dispatcher that [Plaintiff] had
a prior history of involvement in gangs and weapons and was
considered armed and dangerous." (Vahle Aff. para. 16.) This,
along with the outstanding warrant, gave Officer Vahle probable
cause to believe that Plaintiff was a felon and that his vehicle may
contain a gun, which is evidence of criminal activity—the
possession of a weapon or weapons by a felon. 720 ILCS 5/24-1.1
(unlawful possession of weapon by convicted felon).
Plaintiff argues that no reasonable officer could have
concluded that Plaintiff was dangerous, since Plaintiff had
voluntarily provided information about his arrest warrant and was
secured in the patrol car when the search began. Whether Plaintiff
presented a danger is not the issue; the issue is whether probable
cause existed that the vehicle contained evidence of criminal
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activity. A fair probability existed, based on the outstanding arrest
warrant and the telecom report, that weapons would be found in
the vehicle. The seizure of the vehicle was proper for the same
reason, and was supported additionally by the gun found in the
glove box.
Plaintiff contends that Officer Vahle was looking for drugs, not
guns. But Officer Vahle's subjective reason for initiating the search
is not relevant to the Fourth Amendment analysis. See Huff v.
Reichert, 744 F.3d 999, 1007 (7th Cir. 2014)("The probable cause
inquiry is an objective one; an officer's subjective motivations do not
invalidate a search otherwise supported by probable cause."); U.S.
v. Williams, 627 F.3d 247 (7th Cir. 2010)(Officer's "subjective
reasons for making the stop and initiating the search are
irrelevant").
IV.
Officer Vahle's alleged false statements in the
complaint for the search warrant were not material.
An officer who makes knowingly false or recklessly false and
material statements in an application for a search warrant violates
the Fourth Amendment. Scherr v. City of Chicago, 2014 WL
2958611 *3 (7th Cir. 2014). To be material, the false statements
Page 16 of 21
must be "necessary to the determination that a warrant should
issue." Knox v. Smith, 342 F.3d 651, 658 (7th Cir. 2003).
Plaintiff maintains that Officer Vahle falsely stated (1) that
tools were present in Plaintiff's vehicle "which consisted of cordless
drill and wrenches which are items that can be used to hide drugs
in a secret compartment"; (2) that Plaintiff had an extensive
criminal history in Florida as well as Illinois (Plaintiff does not
contest his Illinois criminal history); and (3) that cannabis residue
had been found in the vehicle.2
Yet even if all these purportedly false statements were omitted,
Plaintiff does not dispute that a trained drug dog alerted to the
presence of illegal drugs in Plaintiff's vehicle. The alert alone,
particularly with the evidence of the loaded gun and Plaintiff's
undisputed criminal history, would have provided probable cause to
search Plaintiff's vehicle for illegal drugs. See United States v.
Washburn, 383 F.3d 638, 643 (7th Cir.2004) (“[W]e have held that a
positive alert by a trained drug dog gives rise to probable cause to
2
Plaintiff also assails the inferences drawn from true facts in the complaint for a search warrant, such as the
multiple cell phones and air fresheners. But these were not false statements; they were simply facts from which
more than one reasonable inference might be drawn.
Page 17 of 21
search a vehicle.”), citing U.S. v. Limares, 269 F.3d 794, 798 (7th Cir.
2001); United States v. Thomas, 87 F.3d 909, 912 (7th Cir. 1996).
V.
Plaintiff has no admissible evidence that Defendants
damaged his vehicle.
Some damage to property may be necessary during a lawful
search. Dalia v. U.S., 441 U.S. 238, 258 (1979)([O]fficers executing
search warrants on occasion must damage property in order to
perform their duty.") However, "[e]xcessive or unnecessary
destruction of property in the course of a search may violate the
Fourth Amendment . . . ." U.S. v. Ramirez, 523 U.S. 65, 71 (1998).
According to Vahle, who participated in the searches,
"[a]lthough clothes and personal items were scattered about the
inside of the car and trunk, Illinois State Police personnel did not
damage the vehicle or its contents while it was in their possession."
(Vahle Aff. para. 60.)
Plaintiff admits that his vehicle was not damaged during the
roadside search. Of this he has personal knowledge because he
witnessed the search. Plaintiff maintains that the damage must
have occurred during the later searches for which he was not
present. He submits photos of the purported damage, asserting
Page 18 of 21
that his wife took the photos and that she saw the damage when
the vehicle was released to her. But Plaintiff's testimony as to what
his wife said or did is inadmissible hearsay, and there is no affidavit
from Plaintiff's wife (now ex-wife). Plaintiff attached to his
complaint a purported statement from his wife, but the statement is
not dated or sworn, nor does it authenticate the photos or detail the
damage.3 See Smith v. Bray, 681 F.3d 888, 894 n. 1 (7th Cir.
2012)(affirming district court's refusal to consider, on summary
judgment, hearsay or evidence which lacked foundation or was
unauthenticated).
Even if Plaintiff had submitted an affidavit from someone with
personal knowledge of the condition of the car when it was released,
Plaintiff has no evidence that any of Defendants were responsible
for that damage. Plaintiff's belief that the dog scratched the doors
is speculation; he has no evidence to dispute that the dog never
scratched the vehicle but instead alerted by lying on the ground by
the car door. His argument that Defendants personally damaged
3
The quality of the photos makes it hard to see significant damage. However, Plaintiff asserts that there were
scratches on the doors; the radio, cigarette lighter and CD player no longer worked; the antenna was ripped off
and "smashed"; the liner on the interior of the roof of the car was ripped out; the wood grain was removed from
the console; the door panels were separated from the door; light plates were missing; screws were missing; and
the laptops no longer worked. (Pl.'s Dep. pp. 163‐174.)
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the vehicle is likewise based on speculation. Singer v. Raemisch,
593 F.3d 529, 533 (7th Cir. 2010)("[O]ur favor toward the nonmoving
party [at the summary judgment stage] does not extend to drawing
“[i]nferences that are supported by only speculation or
conjecture.”)(quoted cite omitted). Of all the Defendants, only
Defendant Vahle participated in the searches after the warrant
issued. Plaintiff has no evidence that Vahle was responsible for any
damage done to the vehicle, much less any unreasonable damage.
See, e.g., Molina v. Cooper, 325 F.3d 963, 974 (7th Cir.
2003)(affirming summary judgment to defendant where he was one
of many who conducted search; his presence in the truck was not
enough to allow an inference that he was the one who had damaged
the truck).
IT IS THEREFORE ORDERED THAT DEFENDANTS'
MOTION FOR SUMMARY JUDGMENT IS GRANTED (d/e 36). The
clerk of the court is directed to enter judgment in favor of
Defendants and against Plaintiff. All pending motions are denied as
moot, and this case is terminated, with the parties to bear their own
costs. All deadlines and settings on the Court’s calendar are
vacated. If Plaintiff wishes to appeal this judgment, he must file a
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notice of appeal with this Court within 30 days of the entry of
judgment. Fed. R. App. P. 4(a)(4).
ENTERED: July 22, 2014
FOR THE COURT:
s/Colin Stirling Bruce
COLIN STIRLING BRUCE
UNITED STATES DISTRICT JUDGE
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