Case: 18-40329      Document: 00515293390         Page: 1    Date Filed: 01/31/2020




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                      United States Court of Appeals
                                                                               Fifth Circuit

                                                                             FILED
                                      No. 18-40329                    January 31, 2020
                                                                        Lyle W. Cayce
UNITED STATES OF AMERICA,                                                    Clerk


              Plaintiff - Appellee

v.

ERIKA VERENIZ RODRIGUEZ,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                                  7:17-CR-913-1


Before SMITH, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:*

       Erika Vereniz Rodriguez appeals from an order denying motions to
suppress evidence gathered during a traffic stop. During the stop, Rodriguez,
a former felon, was arrested for being a felon in possession of a firearm after a
Texas state trooper found multiple firearms in the trunk of her car. After being
indicted, Rodriguez filed motions to suppress evidence seized during the stop,
arguing that the stop violated her Fourth Amendment rights because there


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                       No. 18-40329
was no reasonable suspicion to support the stop and the trooper extended the
stop beyond a reasonable time. The district court denied the motions, and,
after a bench trial, found Rodriguez guilty of being a felon in possession of a
firearm. See 18 U.S.C. §§ 922(g)(1), 924(a)(2). She was sentenced to 87 months’
imprisonment and ordered to forfeit her firearms.                 Rodriguez appeals the
denial of her motions to suppress. For the following reasons, we AFFIRM.
                I. FACTS AND PROCEDURAL BACKGROUND
                               A. Factual Background
      Rodriguez and a passenger were driving southbound on U.S. Highway
281 1 in Hidalgo County, Texas as their vehicle overtook state trooper Julio
Trevino Vivero’s patrol car, which was traveling below the speed limit in the
right-hand lane. At the suppression hearing, Vivero testified that Rodriguez
followed behind his vehicle for two to three minutes and was “hesitant to pass.”
Eventually, Vivero reduced his speed, and Rodriguez passed his patrol car. A
sign about 11 miles earlier instructed motorists that the left-hand lane is for
passing only. As depicted in the officer’s dashcam video, Rodriguez remained
in the left lane after she overtook Vivero, passing a second patrol car that was
“on the right side of the highway with [its] emergency lights on, attending to
another traffic stop.” She then passed a truck in the right-hand lane that was
moving at a slower rate of speed. Rodriguez remained in the left-hand lane for
twelve to fourteen seconds after passing the truck, at which point Vivero began
to accelerate to pull her over.
      The trooper explained to Rodriguez that he stopped her for driving in the
left lane without passing and asked Rodriguez for her license and insurance
documentation. A passenger was also present in the car, who Vivero said was
“breathing abnormally,” and “just looking straight.” Vivero then separated


      1   U.S. Highway 281 is a four-lane highway with two lanes in each direction.
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                                  No. 18-40329
Rodriguez from the passenger by ordering Rodriguez out the car.             Vivero
testified that he thought “it was a different traffic stop in [his] eyes.” Based on
his “training [and] experience,” he “felt something was going on” that justified
separating them and investigating further.
      Vivero spoke with the passenger first. He asked her about the parties’
itinerary. The passenger hesitated before answering that they were coming
from Houston, had stayed overnight in a house, and did not have any luggage.
      Vivero next questioned Rodriguez in his patrol car. Rodriguez’s answer
to at least one question contradicted that of the passenger. Whereas the
passenger had told Vivero that she and Rodriguez had met on Facebook,
Rodriguez told Vivero that their husbands were in prison together and that she
and the passenger became friends after running into each other during
visitations. This inconsistency raised Vivero’s suspicion, and he continued to
investigate.   Vivero verified Rodriguez’s information on the patrol car’s
computer and learned that she was a felon. He asked her if she had anything
illegal in the vehicle, and Rodriguez eventually told him that the trunk
contained firearms.     A subsequent search of the vehicle revealed that
Rodriguez had approximately nine firearms in her vehicle’s trunk.
                            B. Procedural History
      After being indicted, Rodriguez moved to suppress her statement made
during the stop and the firearms found during the search of her vehicle,
contending that the initial stop of her car was not supported by reasonable
suspicion and that Vivero unconstitutionally extended the stop. During the
suppression hearing, the district court opined that the twelve to fourteen
seconds that elapsed between when Rodriguez passed the truck and when
Vivero initiated the traffic stop “was really quick.” Nevertheless, the court
stated that the test for reasonable suspicion was whether there was evidence
“that [Rodriguez] was in the left[-]hand lane, she had clear traffic, and a few
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                                 No. 18-40329
seconds had passed” before Vivero pulled her over. The court found that the
dashcam video was “conclusive on some evidence . . . to support reasonable
suspicion” and stated that the only open question was whether Rodriguez had
driven past a sign warning her that the left-hand lane was for passing only.
      Rodriguez’s counsel argued that there was no evidence that Rodriguez
had passed a sign at mile marker 744 alerting drivers to this regulation. The
court rejected that argument, finding that it was “reasonable to believe that
[Rodriguez] would have seen th[e] sign heading southbound.”              The court
reiterated that “there was some evidence that [Vivero] had reasonable
suspicion to believe that [Rodriguez] had engaged in a traffic violation for
staying in the passing lane longer than she should have” and also found that
“the length of the detention was reasonable.” The court denied the motions to
suppress, and Rodriguez lodged an objection. The district court then conducted
a bench trial and found Rodriguez guilty of being a felon in possession of a
firearm. Rodriguez timely appealed.
                          II. Standard of Review
      In examining the district court’s denial of Rodriguez’s motions to
suppress,   we   review   de   novo   its   legal    conclusions    regarding    the
constitutionality of the traffic stop and its extension. See United States v.
Cervantes, 

, 328 (5th Cir. 2015). We review the district court’s
factual findings, including its credibility determinations, for clear error. See
United States v. Rangel-Portillo, 

, 379 (5th Cir. 2009).            The
evidence presented at the suppression hearing is viewed in the light most
favorable to the prevailing party, which in this case is the Government. See

.
                               III. Discussion
      On appeal, Rodriguez challenges the district court’s denial of her motions
to suppress on the grounds that (1) no reasonable suspicion of criminal activity
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                                   No. 18-40329
existed to support the traffic stop and (2) Vivero impermissibly prolonged her
detention because he extended the stop without reasonable suspicion of
additional criminal activity.
      A Fourth Amendment “seizure” occurs when an officer stops a vehicle
and detains its occupants. See United States v. Brigham, 

, 506
(5th Cir. 2004) (en banc). In Terry v. Ohio, 

(1968), the Supreme
Court set forth a two-pronged analysis under which the constitutionality of a
traffic stop is examined. See United States v. Pack, 

, 349–50 (5th
Cir. 2010), modified on denial of reh’g, 

(5th Cir. 2010). A court
must first determine whether the stop was justified at its inception. 

. “For a traffic stop to be justified at its inception, an officer must
have an objectively reasonable suspicion that some sort of illegal activity, such
as a traffic violation, occurred, or is about to occur, before stopping the vehicle.”
United States v. Lopez-Moreno, 

, 430 (5th Cir. 2005). If the stop
was justified, the court determines in the second step whether “the officer’s
subsequent actions were reasonably related in scope to the circumstances that
caused him to stop the vehicle in the first place.” 

. “If
the officer develops reasonable suspicion of additional criminal activity during
his investigation of the circumstances that originally caused the stop, he may
further detain its occupants for a reasonable time while appropriately
attempting to dispel this reasonable suspicion.” 

exists when the officer can point to specific and
articulable facts which, taken together with rational inferences from those
facts, reasonably warrant the search and seizure.” 

. “[R]easonable suspicion is a low threshold” and requires only “‘some
minimal level of objective justification’ for making the stop.” United States v.
Castillo, 

, 367 (5th Cir. 2015) (quoting United States v. Sokolow,

, 7 (1989)). The officer must have more than a “mere hunch” that
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                                       No. 18-40329
the person stopped is engaged in illegal activity, but “reasonable suspicion
need not rise to the level of probable cause.” See 

.
                 A. Reasonable Suspicion to Stop Rodriguez
        We first evaluate whether Vivero had reasonable suspicion to initiate the
stop. The Government argues that Rodriguez was stopped for driving in the
left-hand lane without passing in violation of the Texas Transportation Code. 2
Section 544.004 of the Code provides that an operator of a vehicle “shall comply
with an applicable traffic-control device [i.e., traffic sign].” TEX. TRANSP. CODE
S.   § 544.004(a). The Texas Court of Criminal Appeals has held that a violation
of § 544.004 occurs when one drives in the left-hand lane without passing
another vehicle and there exists a “‘left lane for passing only’ sign . . . present
within a reasonable distance of the traffic stop.” Abney v. State, 

, 548 (Tex. Crim. App. 2013). Because “there are no specific guidelines for
the spacing of the ‘left lane for passing only’ signs,” courts must determine
“whether such a sign is applicable on the facts of each case.” 

see
also 

(“[W]e follow Abney . . . and conclude that a court




        2 In its opposition to the motions to suppress and its briefing to this court, the
Government appeared at times to argue that Rodriguez violated § 544.011 of the Texas
Transportation Code. However, that provision merely requires that signs on highways
directing slower traffic to travel in a lane other than the farthest left lane “must read ‘left
lane for passing only.’” TEX. TRANSP. CODE ANN. § 544.011. No Texas traffic law
specifically addresses driving in the left lane without passing. See United States v. Castillo,

, 674 (S.D. Tex. 2014) (Costa, J.), aff’d, 

(5th Cir. 2015).
Rather, as the Government noted elsewhere in its briefing to the district court and on appeal,
the relevant provision is Section 544.004, which requires compliance with traffic signs. See
TEX. TRANSP. CODE ANN. § 544.004(a).

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                                   No. 18-40329
must ‘determine, based on the statute, whether [a] sign is applicable on the
facts of each case.”) (second alteration in original).
      Here, as in Abney, we must determine whether “the officer had
reasonable suspicion that Appellant committed the traffic violation of driving
in the left lane without passing when a sign (a traffic control device) prohibited
such action.” 

. To determine whether the stop was
supported by reasonable suspicion, we consider “the totality of the
circumstances” giving rise to the traffic stop, including whether the sign
applies to Rodriguez, whether Rodriguez had a credible alternative reason for
driving in the left lane, and whether Vivero provided Rodriguez an opportunity
to switch lanes before stopping her. See 

–67; 

–50.
      We first consider whether the “left lane for passing only” sign applies to
Rodriguez, i.e., whether “the facts support[] a reasonable inference that
[Rodriguez] drove past the sign before being pulled over.” 

. In Abney, the Texas Court of Criminals Appeals held that an officer
did not have reasonable suspicion to pull over Appellant where Appellant, in
the officer’s opinion, may have passed a “left lane for passing only” sign located
at least fifteen miles away, the officer had no idea when Appellant entered the
highway, and “[t]he facts support[ed] that Appellant was driving in the left
lane to make a left turn.” 

. In Mouton v. State, a
Texas appeals court concluded that there was probable cause to support a
traffic stop when the officer observed Mouton driving in the left lane and
followed him “for at least a mile before stopping him” three to four miles from
the last left-lane-for-passing-only sign. 

. In Baker v.
State, the Texas appeals court upheld a traffic stop when the sign was
approximately six miles from the location of the stop. 

.
The officer first observed Baker driving in the left-hand lane behind him and
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                                  No. 18-40329
then saw Baker pass him and continue to drive in the left lane for “a quarter
to half a mile or three quarters of a mile” before stopping him. See 

marks omitted).
      Additionally, in United States v. Castillo, we determined that a traffic
stop was supported by reasonable suspicion when the officer first observed
Castillo driving in the left lane 5.3 miles from the closest left-lane-for-passing-
only 

. The officer caught up with Castillo’s vehicle
approximately eight miles from the sign and followed the vehicle for an
additional three miles before making the stop. See 

In concluding
that the stop was valid, we observed that the officer followed Castillo for
several minutes and allowed him an opportunity to switch lanes and that
Castillo did not provide a “credible alternative reason for driving in the left
lane.” 

testified that there was a sign at mile marker 744
instructing motorists that the left-hand lane was for passing only. Rodriguez
came behind Vivero’s vehicle and followed it for two to three minutes. Vivero
testified that Rodriguez eventually passed him at or around mile marker 751
or 752, and that he pulled her over near mile marker 756. However, Vivero
also said he was driving below the speed limit, and the video evidence shows
that just over one minute elapsed from when Rodriguez passed Vivero to when
she was stopped. Although the dashcam video does not reveal the exact mile
at which Rodriguez passed Vivero, if Rodriguez was stopped at mile marker
756—which the parties do not dispute—and Vivero was driving below the
speed limit, then Rodriguez could not have passed Vivero around mile marker
751 or 752. Instead, she must have been closer to mile marker 755 when she
passed Vivero. Thus, the distance from the left-hand for passing only sign at
mile marker 744 to the point at which Vivero first saw Rodriguez driving in


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                                       No. 18-40329
the left lane was about eleven miles. 3 However, Rodriguez was driving behind
Vivero for two to three minutes before she passed him, and Vivero therefore
knew Rodriguez was on the highway about eight or nine miles from the “left
lane for passing only” sign, increasing the likelihood that she passed it.
       These distances are not covered by any of the cases previously
discussed—they are longer than the four- to six-mile distances deemed
reasonable in Mouton, Castillo, and Baker, 4 and shorter than the fifteen-mile
distance that the court in Abney held was too far to be applicable. Besides the
distance from the sign, however, we must evaluate other circumstances that
inform the likelihood that Rodriguez passed the sign. See 

, 550 (conducting a distance-specific analysis in part because the facts
did not support “a reasonable inference that the defendant drove past the sign
before being pulled over” and stating that how many miles the officer followed
the driver and evidence concerning whether there was an entrance on the
highway between the sign and location of the stop are “certainly factors to
consider when evaluating the totality of the circumstances”); 

(considering “the typical traffic flow on Highway 59 and the likelihood
that a car on that stretch of road would have been traveling a long distance
rather than a short one”). Here, the court explained that the stretch of highway
that Rodriguez was on was “rural” with occasional ranches and homes “along



       3  The caselaw is inconsistent regarding the rubric for measuring whether a sign is
applicable because it is within a “reasonable distance”: some courts have measured the
distance between the sign and the traffic stop, see 

; 

; Earvin, 

, at *5, while others have measured the distance
between the sign and where the violation began. 

; 394 S.W.3d at 550.
We follow the approach of Abney, the most thorough Texas case to deal with this issue, and
Castillo, a published opinion from this court, and measure the distance between the sign and
where the officer first observed the vehicle in the left lane without passing. See 

; 

.
       4 We note that these cases relied on the distance between the sign and the stop, while

Abney relied on the distance between the sign and when the driver moved into the left lane.
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                                  No. 18-40329
the side of the highway.” While there are turnarounds in the median, the court
found that the area of the highway with southbound traffic is generally used
for long-distance travel, based on the officer’s “being very familiar with this
area of the highway.” The record does not indicate whether there were on-
ramps between the sign and where Vivero first encountered Rodriguez.
      In Abney, the officer did not know at which point Abney entered the
highway and first encountered him on the highway at least fifteen miles from
the nearest “left lane for passing only” sign. 

. Here,
Vivero encountered Rodriguez on the highway eight to nine miles from the
nearest “left lane for passing only” sign, was familiar with the highway, and
knew it was generally used for long-distance travel. Thus, unlike the officer in
Abney, trooper Vivero could point to articulable facts supporting a reasonable
belief that Rodriguez passed the located sign eight to nine miles away. See

; 

. Moreover, unlike the
driver in Abney, who drove in the left lane to make a left turn, 

, Rodriguez has not explained why she remained in the left lane after
clearing the second patrol car on the side of the road and the “obstruction”
caused by a slow-moving truck further ahead on the highway and therefore has
not advanced “credible alternative reason for driving in the left lane.” 

. Her failure to provide a reason for remaining in the left lane
for the twelve to fourteen seconds after she passed the slow-moving truck
further supports a finding of reasonable suspicion for the traffic stop. See

; cf. Jaganathan v. State, 

, 248 (Tex.
Crim. App. 2015) (rejecting the lower court’s suggestion that appellant might
have thought it was unsafe to switch lanes because it was not obvious from the
video that it was unsafe).
      At the suppression hearing, defense counsel estimated that Rodriguez
traveled about one-tenth of a mile during the twelve to fourteen seconds she
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                                  No. 18-40329
was in the left lane after passing the truck and before Vivero turned on his
lights to pull her over. In Castillo, the officer observed the driver in the left
lane without passing “for several minutes,” while the officer in Baker observed
the driver travel in the left lane “a quarter to half a mile or three quarters of a
mile” before pulling him over. 

; 50 S.W.3d at 145 (internal
quotation marks omitted). Although the officers in those cases observed the
drivers in the left lane without passing for greater lengths of time than here,
the Government argues that an officer can develop a reasonable suspicion that
an individual is driving in the left lane without passing in a brief period of
time, citing in support 

–48, and Earvin, 

at *1. In Jaganathan, the Texas Court of Criminal Appeals
reversed the appellate court’s holding that an officer did not have reasonable
suspicion to conduct a traffic stop for driving in the left-hand lane, noting that
the officer had driven behind the offender in the left-hand lane for ten to twelve
seconds prior to initiating the traffic 

–48. Similarly,
in Earvin, the court upheld the denial of a motion to suppress where the officer
observed the defendant driving in the left-hand lane for twenty to thirty
seconds. 

, at *4–5. Though the court did not specifically
address the timing issue in either case, we find them persuasive.
      “[R]easonable suspicion is a low threshold, requiring” only “some
minimal level of objective justification for making the stop.” 

(internal quotation marks omitted). A traffic stop is justified if the
officer has “an objectively reasonable suspicion that . . . a traffic violation,
occurred, or is about to occur, before stopping the vehicle.” 

(emphasis added). The twelve to fourteen seconds that elapsed
between Rodriguez’s clearance of the truck and Vivero’s acceleration to make
the traffic stop provided Vivero with reasonable suspicion that a traffic
violation had occurred or was about to occur and, certainly, it provided him
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                                      No. 18-40329
with more than a “mere hunch.” 

v. Ohio, 

, 27 (1968)).
As the Baker court explained, “[t]he standards to apply [in enforcing the left-
lane-for-passing-only provision] are explicit. If it is in the left lane, the vehicle
should be in the process of passing other vehicles. If it is not passing other
vehicles, the vehicle should not be in the left lane.” 

.
      Based on the totality of the circumstances, and viewing the evidence in
the light most favorable to the Government, we conclude that trooper Vivero
had reasonable suspicion to stop Rodriguez. See 

;

.
                  B. Reasonable Suspicion to Extend the Stop
      Rodriguez next argues that the district court erred in concluding that the
length of the detention was reasonable. She contends that after Vivero twice
informed her that he would issue a warning for driving in the left lane, the
“need for the stop had ended,” and his subsequent questioning of her
impermissibly extended the stop beyond a reasonable time.
      A traffic stop “must be temporary and last no longer than is necessary to
effectuate the purpose of the stop, unless further reasonable suspicion,
supported by articulable facts, emerges.”            

; see
Rodriguez v. United States, 

, 354 (2015). “If the officer develops
reasonable suspicion of additional criminal activity during his investigation of
the circumstances that originally caused the stop, he may further detain its
occupants for a reasonable time while appropriately attempting to dispel this
reasonable suspicion.” 

.
      Here, when Vivero initially asked Rodriguez for her documentation, 5 he
noticed that the passenger was “breathing abnormally,” and was “looking
straight” ahead. Based on his training and experience, Vivero concluded that


      5   This preceded Vivero’s statements that he would issue a warning.
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                                 No. 18-40329
this “was a different traffic stop” and that “something [was] going on.” When
Vivero asked the passenger questions at the outset of the stop, she was
uncertain and hesitant and initially “couldn’t really provide an answer” to the
basic question of where she and Rodriguez had stayed overnight in Houston.
Although the passenger claimed that the pair did in fact spend the night in
Houston, she also confirmed that there was no luggage in the car.
      Vivero’s questioning of the passenger at the outset of the stop regarding
the purpose of her travel and her travel itinerary was permissible and did not
unduly prolong the stop. See United States v. Villafranco-Elizondo, 

, 641 (5th Cir. 2018) (“Law enforcement officers have some latitude when
speaking to a suspect during a routine traffic stop,” and may ask “about the
purpose and itinerary of [the suspect’s] trip.” (internal quotation marks
omitted)). Based on his observations that the passenger was nervous, hesitant
to answer questions, and provided strange answers, Vivero developed a
reasonable suspicion of criminal activity and was entitled to detain Rodriguez
and the passenger for a “reasonable time while appropriately attempting to
dispel this reasonable suspicion.” 

; see 

n.5
(holding that reasonable suspicion existed where the officer testified as to the
defendant-passenger’s nervousness, the driver’s and defendant’s conflicting
stories, and the fact that the pair was traveling on a known drug corridor);
United States v. Fishel, 

, 856–57 (5th Cir. 2006) (holding that
reasonable suspicion existed based on defendant’s nervousness, expired
driver’s license, and inconsistencies in his story regarding travel plans and
ownership of the vehicle); United States v. Gonzalez, 

, 758 (5th
Cir. 2003) (holding that articulable facts supporting reasonable suspicion
included, inter alia, the defendant’s nervousness and hesitation in answering
questions about travel plans).


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                                  No. 18-40329
      In seeking to dispel his reasonable suspicion through further
investigation and questioning, Vivero discovered that Rodriguez’s answer to
the question of how she knew the passenger conflicted with the passenger’s
answer. Shortly after asking Rodriguez further questions about her itinerary,
Vivero remarked to Rodriguez that “[b]oth yourself and your [passenger] here
are extremely nervous” and your passenger “is shaking” and “hesitating.”
Thereafter, Vivero stated “[i]t’s just not making any sense to me” and asked
Rodriguez whether there was anything illegal in the car. Rodriguez admitted
to possessing firearms in the trunk.
      Rodriguez asserts that thirteen minutes elapsed between the initiation
of the traffic stop and her confession. Vivero testified that a traffic stop of this
nature would normally take five to ten minutes. Thus, the length of the traffic
stop was not unduly long, and Rodriguez even concedes that “the length of time
of the questioning was not that great.” Nevertheless, she contends that there
was no reasonable suspicion of additional criminal activity once Vivero
separated her from the passenger and questioned her in his patrol car.
Specifically, Rodriguez argues that her mere nervousness during the
questioning in the patrol car was not sufficient to extend the stop.           Her
argument ignores the fact that the passenger’s extreme nervousness and
inability to clearly answer questions, initially led Vivero to prolong the stop
and further question Rodriguez. Vivero’s suspicions grew once he questioned
Rodriguez in his patrol car as she gave answers that were inconsistent with
the passenger’s responses. Viewing the evidence in the light most favorable to
the Government, Rodriguez has failed to establish that Vivero lacked
reasonable suspicion to prolong the duration of the traffic stop. See 

. Accordingly, the district court did not err in determining that
the length of the stop was reasonable.


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                                 No. 18-40329
                               IV. Conclusion
     For these reasons, we AFFIRM the district court’s denial of Rodriguez’s
motions to suppress.




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