People v. Webb
Citation234 N.E.3d 87, 2023 IL 128957
Date Filed2023-11-30
Docket128957
Cited33 times
StatusPublished
Full Opinion (html_with_citations)
2023 IL 128957
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 128957)
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.
DANTE ANTWAN WEBB, Appellant.
Opinion filed November 30, 2023.
JUSTICE ROCHFORD delivered the judgment of the court, with opinion.
Chief Justice Theis and Justices Neville, Overstreet, Holder White,
Cunningham, and O’Brien concurred in the judgment and opinion.
OPINION
¶1 Defendant, Dante Antwan Webb, was convicted of cannabis trafficking (720
ILCS 550/5.1(a) (West 2018)), possession of cannabis with intent to deliver (id.
§ 5(f)), and possession of cannabis (id. § 4(f)). The McLean County circuit court
merged the possession counts into the trafficking count and sentenced defendant to
14 years’ imprisonment. On appeal, defendant argued that his trial counsel was
ineffective for failing to move to suppress on the ground that the officer lacked
probable cause to search defendant’s semitrailer. The Appellate Court, Fourth
District, affirmed defendant’s conviction and sentence. 2022 IL App (4th) 210726-
U. For the reasons set forth below, we affirm the appellate court’s judgment.
¶2 BACKGROUND
¶3 The charges against defendant arose from a traffic stop on March 24, 2018.
Prior to trial, defendant filed a motion to suppress evidence of cannabis recovered
from the cabin of the semitrailer truck that defendant was driving at the time of his
arrest, as well as to suppress statements defendant made after his arrest. With regard
to the cannabis, defendant’s motion to suppress argued that the warrantless search
of defendant’s semitrailer was unlawful because (1) the police officer did not have
a reason to stop defendant, (2) once the officer stopped defendant, he improperly
prolonged the stop in order to conduct a canine drug sniff, and (3) the subsequent
search of the semitrailer violated the fourth amendment to the United States
Constitution (U.S. Const., amend. IV).
¶4 On October 20, 2020, a hearing was held on defendant’s motion to suppress.
The facts relevant to the instant appeal are as follows. Sergeant Jonathan Albee of
the McLean County Sheriff’s Office testified that on March 24, 2018, he was on
duty as a deputy officer in the patrol division and observed a white truck tractor
pulling a partially loaded car hauler semitrailer. Albee noticed that the vehicle had
no driver’s side markings indicating the company name or the Department of
Transportation (DOT) number, as required by federal motor carrier safety
regulations. Albee also noted that the car hauler was only partially loaded with four
vehicles, rather than a full load, which Albee found unusual because trailers are
expensive to operate. Albee pulled out after the vehicle and noticed there was no
registration displayed on the trailer. Albee then activated his emergency lights and
pulled defendant over.
¶5 Albee approached the vehicle on the passenger side and asked defendant for
permission to step up and speak with him. Defendant agreed. Albee asked
defendant if he had a codriver with him. Defendant said no. Albee testified that
defendant appeared to be in a state of panic. Defendant’s movements were very
animated. Defendant would stand up, then sit back down. Albee explained that
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generally, when he stops a truck, the driver has a binder put together with a cab
card, vehicle insurance information, and other documents. Defendant had nothing
put together and was very disorganized. Defendant gave Albee information that
Albee did not request, including bills for tire repairs and that type of thing. Albee
had to remind defendant that all he needed was defendant’s driver’s license,
insurance information, and cab card. Albee testified that defendant also volunteered
that he had been stopped several times during his trip and that the vehicle had been
checked for drugs. Albee found that statement to be “bizarre” and out of the norm.
¶6 Albee asked defendant to meet him in front of defendant’s vehicle. Albee
explained that he wanted to compare the cab card with the displayed registration.
Albee said that defendant gave him a cab card that was Illinois apportioned, but the
displayed license plate was a California plate that did not match the cab card. At
this point, Albee reasonably believed that defendant was involved in some type of
criminal activity. Albee requested another unit to respond to the location for
assistance.
¶7 Defendant accompanied Albee back to Albee’s squad car and sat in the front
passenger seat. Albee began writing a written warning and tried to run the license
plate on defendant’s semitrailer. At this point, Deputy Andrew Erickson arrived on
the scene and took over the enforcement action so that Albee could perform a free
air sniff test with his canine partner. The canine had been working for
approximately 10 years and was trained to alert to crack cocaine,
methamphetamine, heroin, ecstasy, and marijuana. Albee’s canine began the free
air sniff at the rear of the vehicle and worked to the front. When the canine was at
the rear tandems of the vehicle, Albee observed a change in the canine’s behavior
and odor recognition. The canine also responded near the “dog box,” which is right
behind the driver’s seat. Albee then secured the dog and informed defendant that
there had been a positive alert on the trailer. Albee told defendant that he was going
to search the vehicle and asked defendant if there was anything in the vehicle that
would startle Albee. Defendant acknowledged that he had someone with him in the
trailer, later identified as Darrell McClain. Albee had McClain exit the vehicle and
then performed a probable cause search. The search revealed an unlicensed firearm
and a substance later determined to be cannabis. The parties stipulated at
defendant’s bench trial that the cannabis weighed 2736 grams and stipulated at
defendant’s sentencing hearing that the street value of the cannabis was $40,000.
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¶8 Following the hearing, the trial court denied the motion to suppress. The trial
court found that there was probable cause to stop defendant’s vehicle for violation
of the statute requiring that a license plate be attached to the rear of defendant’s
trailer. Further, the canine free air sniff gave Albee probable cause to search
defendant’s vehicle for contraband. The trial court did suppress one statement that
defendant made after being placed in Deputy Erickson’s vehicle.
¶9 The case then proceeded to a bench trial. As noted, the trial court found
defendant guilty on all three counts and sentenced defendant to 14 years’
imprisonment. The trial court subsequently denied defendant’s posttrial motion
challenging the trial court’s order denying defendant’s motion to suppress.
¶ 10 On appeal, defendant argued that his trial counsel was ineffective for failing to
move to suppress the cannabis on the basis that the positive canine alert, without
more, was not sufficient to establish probable cause following changes to cannabis
legislation in Illinois. Specifically, the legislature had enacted the Compassionate
Use of Medical Cannabis Pilot Program Act (Act) in 2014, legalizing possession of
cannabis for those licensed by the State to use it for medical purposes (410 ILCS
130/1 et seq. (West 2014)). In 2016, the legislature decriminalized the possession
of less than 10 grams of cannabis (720 ILCS 550/4(a) (West 2016)). Based upon
the 2014 and 2016 legislation, defendant claimed that all adult Illinoisans were
allowed to possess less than 10 grams of cannabis, so that the canine alert to his
semitrailer indicated only that the vehicle might contain a substance that defendant
was allowed to possess. Defendant maintained that this was not sufficient to
establish probable cause. Albee had only a “hunch” that defendant was involved in
some sort of criminal activity, which was not sufficient to support probable cause
under the fourth amendment.
¶ 11 The appellate court rejected defendant’s claim of ineffective assistance of
counsel and affirmed his conviction and sentence. 2022 IL App (4th) 210726-U.
The appellate court first noted that “ ‘all adult Illinoisians’ ” were not allowed to
possess less than 10 grams of cannabis after the legislature decriminalized such
possession, as decriminalization was not synonymous with “ ‘legalization.’ ” Id.
¶ 35. After decriminalization, cannabis continued to be contraband, and its
possession remained illegal. Id. A positive canine alert for contraband constituted
probable cause to search a vehicle. Id. ¶ 37. Albee’s canine was certified in the
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detection of narcotics, including cannabis, crack cocaine, methamphetamine,
heroin, and ecstasy. Id. Because Albee’s canine alerted to the presence of at least
one of those illegal substances, probable cause existed for the search of defendant’s
vehicle. Id. Consequently, had defendant’s trial counsel filed a motion to suppress
on the basis that the canine search did not constitute probable cause, that argument
would have been denied. Id. For that reason, defendant could not show that he was
prejudiced by counsel’s failure to raise that argument, as necessary to sustain a
claim of ineffective assistance of counsel. Id.
¶ 12 This court allowed defendant’s petition for leave to appeal. Ill. S. Ct. R. 315(a)
(eff. Oct. 1, 2021).
¶ 13 ANALYSIS
¶ 14 In this court, defendant again argues that he received ineffective assistance of
counsel when trial counsel failed to move to suppress the cannabis based upon
changes to cannabis legislation in Illinois. Defendant claims that in light of those
changes, a positive canine alert to cannabis on its own did not provide probable
cause for the search. Although defendant’s argument in the appellate court focused
on legislation decriminalizing possession of less than 10 grams of cannabis,
defendant focuses his ineffective assistance of counsel claim in this court on the
Act.
¶ 15 This court has long held that the use of drug-sniffing dogs to detect the presence
of narcotics is an acceptable method to establish probable cause. People v.
Campbell, 67 Ill. 3d 308, 315-16 (1977). In addition, the odor of cannabis
emanating from a car, standing alone, creates probable cause to search. People v.
Stout, 106 Ill. 2d 77 (1985). Defendant acknowledges the Campbell and Stout
decisions but argues those decisions are no longer good law following passage of
the Act.
¶ 16 Defendant notes that the Act created a class of lawful cannabis users and
established an identification card system for qualifying participants. 410 ILCS
130/7(1), 10(d), 15(b) (West 2018). The Act specifically exempted qualified,
registered participants from “arrest, prosecution, or denial of any right or privilege”
if they possessed cannabis within the amount allotted to them under the Act. Id.
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§ 25(a)-(c). Defendant claims that, in legalizing cannabis for some individuals, the
Act changed the probable cause analysis concerning the detection of cannabis by
drug-sniffing canines. Defendant argues that, following passage of the Act, an alert
by a dog trained on cannabis did not give officers probable cause to search without
first ascertaining whether defendant was allowed to have cannabis in his vehicle.
Given that the Act had been in effect for six years at the time of defendant’s trial,
defendant argues that his attorney was ineffective for failing to file a motion to
suppress the search of defendant’s semitrailer on those grounds.
¶ 17 Defendant also cites People v. Hill, 2020 IL 124595, in support of his claim that
the dog sniff in this case did not provide probable cause to search defendant’s
vehicle. In Hill, the defendant argued that the legalization of medical cannabis and
the decriminalization of small amounts of cannabis altered the power of the police
to conduct warrantless searches of vehicles based solely on the odor of raw
cannabis. Id. ¶ 15. The defendant in Hill asked this court to overrule Stout. Id. Hill
found it unnecessary to decide the continued validity of Stout because the officer in
Hill relied on more than the odor of raw cannabis in making his probable cause
determination. Id. ¶¶ 15-16. Although the court did not reach the issue of whether
the odor of cannabis, standing alone, is sufficient to establish probable cause, Hill
stated that the “smell and presence of cannabis undoubtedly remains a factor in a
probable cause determination.” Id. ¶ 18 n.2. Hill agreed with the defendant that
possession of cannabis is not contraband for medical users but noted that such users
still must possess and use the cannabis in accordance with the Act and the Illinois
Vehicle Code (625 ILCS 5/11-502.1(a)-(c) (West 2016)). Hill, 2020 IL 124595,
¶ 34. In finding that the officer had probable cause to search the defendant’s vehicle
based upon the facts of the case, the court agreed that “the Act somewhat altered
the status of cannabis as contraband.” Id. ¶ 26.
¶ 18 Defendant seizes upon Hill’s statement that “the Act somewhat altered the
status of cannabis as contraband” in support of his claim that trial counsel was
ineffective in failing to move to suppress the cannabis based upon the Act.
Defendant points out that the Hill opinion was filed seven months prior to the
hearing on defendant’s motion to suppress, so trial counsel should have been aware
of the opinion. Defendant argues that counsel should have moved to suppress the
cannabis based upon the Act, as well as Hill’s express acknowledgment concerning
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the impact of the Act, and that the failure to do so constituted ineffective assistance
of counsel.
¶ 19 In addressing defendant’s argument, it is important to first clarify what is and
what is not at issue in this case. Defendant argues that this court should hold that,
following passage of the Act, a dog sniff alone no longer provides probable cause
to search and that the Campbell and Stout decisions should be overruled. Defendant
then argues that his counsel was ineffective in failing to file a motion to suppress
based upon those changes to the law.
¶ 20 To the extent defendant is arguing that the Act changed probable cause analysis
concerning the detection of cannabis by drug-sniffing canines, that issue is not
before this court. Nor is the issue of whether Campbell and Stout should be
overruled before us. Rather, the issue before this court is whether counsel was
ineffective in failing to file a motion to suppress the cannabis based upon the Act.
¶ 21 It is well settled that a criminal defendant has the right to the effective assistance
of counsel under both the United States Constitution and the Illinois Constitution.
U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, § 8; People v. Peterson, 2017
IL 120331, ¶ 79. This court has adopted the standard set forth in Strickland v.
Washington, 466 U.S. 668 (1984), to judge a defendant’s ineffective assistance of
counsel claim. People v. Albanese, 104 Ill. 2d 504, 526 (1984). Accordingly, to
prevail on a claim of ineffective assistance of counsel, a defendant must show that
his attorney’s representation fell below an objective standard of reasonableness and
that a reasonable probability exists that, but for counsel’s errors, the result of the
proceeding would have been different. Peterson, 2017 IL 120331, ¶ 79. A
defendant’s failure to satisfy either prong of the Strickland standard precludes a
finding of ineffective assistance of counsel. Id.
¶ 22 To establish deficient performance, a defendant must prove that counsel’s
performance, judged by an objective standard of competence under prevailing
professional norms, was so deficient that counsel was not functioning as the
“counsel” guaranteed by the sixth amendment. People v. Bew, 228 Ill. 2d 122, 127-
28 (2008). A defendant must overcome the strong presumption that counsel’s
challenged action or inaction was the product of sound trial strategy. People v.
Dupree, 2018 IL 122307, ¶ 44. In evaluating an attorney’s performance for
purposes of an ineffective assistance of counsel claim, that performance must be
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evaluated from counsel’s perspective at the time the contested action was taken.
People v. Bailey, 232 Ill. 2d 285, 289 (2009). An attorney will not be deemed
deficient for failing to make an argument that has no basis in the law. People v.
King, 192 Ill. 2d 189, 197 (2000).
¶ 23 The decision whether to file a motion to suppress is generally a matter of trial
strategy entitled to great deference. People v. White, 221 Ill. 2d 1, 21 (2006). To
establish prejudice when an ineffective assistance claim is based on trial counsel’s
failure to file a suppression motion, a defendant must demonstrate that the unargued
suppression motion was meritorious and that a reasonable probability exists that the
trial outcome would have been different had the evidence been suppressed. People
v. Henderson, 2013 IL 114040, ¶ 15. This court’s standard of review for
determining whether a defendant was denied the effective assistance of counsel is
de novo. People v. Johnson, 2021 IL 126291, ¶ 52.
¶ 24 Defendant argues that trial counsel should have moved to suppress the cannabis
on the ground that the underlying search of his vehicle was unlawful. Our state
constitution and the federal constitution protect against unreasonable searches and
seizures. U.S. Const., amend. IV; Ill. Const. 1970, art. I, § 6. A search generally is
per se unreasonable if it is conducted without a warrant supported by probable
cause and approved by a judge or magistrate. Hill, 2020 IL 124595, ¶ 20. There are
recognized exceptions to the general rule, however, including an exception for
searches of vehicles. Id. ¶ 21. A warrantless search of a vehicle is not per se
unreasonable given the “transient nature” of a vehicle that “often renders it
impracticable to secure a warrant before the automobile escapes the jurisdiction in
which the warrant must be sought.” Id.
¶ 25 An officer’s search of a vehicle, however, still must be supported by probable
cause. Id. ¶ 22. In determining whether probable cause to conduct a warrantless
search of an automobile exists, an officer may rely on his law-enforcement training
and experience to make inferences that might evade an untrained civilian. Id. ¶ 23.
Probable cause requires a showing that the totality of the facts and circumstances
known to the officer at the time of the search would justify a reasonable person in
believing that the automobile contains contraband or evidence of criminal activity.
Id. Because probable cause deals with probabilities, not certainties, probable cause
does not require an officer to rule out any innocent explanations for suspicious
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facts. Id. ¶ 24. Probable cause “requires only that the facts available to the officer—
including the plausibility of an innocent explanation—would warrant a reasonable
man to believe there is a reasonable probability ‘that certain items may be
contraband or stolen property or useful as evidence of a crime.’ ” Id. (quoting Texas
v. Brown, 460 U.S. 730, 742 (1983)).
¶ 26 As discussed, Campbell held that the use of dogs trained in the detection of
narcotics is a permissible method of establishing probable cause. Campbell, 67 Ill.
2d at 315-16. Stout, 106 Ill. 2d at 87, similarly held that a police officer’s detection
of the odor of cannabis from a defendant’s vehicle, without additional
corroboration, also was a “permissible method of establishing probable cause” for
a warrantless search.
¶ 27 With the preceding authority in mind, we turn to defendant’s argument. As
noted, defendant asserts that trial counsel should have filed a motion to suppress on
the ground that the canine sniff alone could no longer provide probable cause to
search his vehicle following changes to the cannabis laws in Illinois and this court’s
decision in Hill. For the following reasons, we find that defendant cannot
demonstrate ineffective assistance of counsel based upon the unargued motion to
suppress.
¶ 28 We first note that the Hill decision would defeat, rather than support, a motion
to suppress based upon changes to Illinois’s cannabis legislation in this case. As
discussed, the Hill court found that the officer relied on more than the odor of raw
cannabis in making his probable cause determination, so that it need not address
Stout. The officer in Hill, 2020 IL 124595, ¶ 5, testified that he activated his lights
to stop the defendant’s vehicle based upon a reasonable belief that the defendant’s
passenger was a known fugitive. The defendant drove for a few blocks before
finally stopping. The officer testified that, based on his experience and training,
vehicles that take a while to stop often are concealing or destroying contraband or
producing a weapon. Id. When the officer approached the passenger side of the
vehicle, the passenger lowered the window, and the officer immediately smelled a
strong odor of raw cannabis. Id. The officer saw a bud of cannabis in the back seat
and initiated a search of the vehicle, which revealed a small amount of cannabis
and a small rock that tested positive for crack cocaine. Id. ¶¶ 7, 10.
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¶ 29 As in this case, the defendant in Hill argued that the legalization of medical
cannabis and the decriminalization of small amounts of cannabis altered the power
of the police to conduct a warrantless search based solely on the odor of raw
cannabis. Id. ¶ 15. The defendant therefore argued that this court’s decision in Stout
should be overruled. Id. Because the officer considered more than the odor of raw
cannabis in deciding to search the defendant’s vehicle, however, this court held that
it need not address the validity of Stout following changes to Illinois’s cannabis
legislation. Id. ¶ 18. The court held that it would instead consider whether the
totality of circumstances supported a finding of probable cause. Id.
¶ 30 In this case as well, Albee relied on more than the dog sniff in conducting his
search of defendant’s vehicle. The totality of the facts and circumstances known to
Albee at the time of the search would justify a reasonable person in believing that
the vehicle contained contraband or evidence of criminal activity. Those facts and
circumstances included more than the positive canine alert. Albee testified that
defendant’s semitrailer did not comply with federal motor carrier safety regulations
requiring the company name or the DOT number on the driver’s side; the car hauler
was only partially loaded with vehicles, even though car haulers are expensive to
operate; there was no registration displayed on the trailer; defendant appeared to be
in a state of panic; defendant lacked the usual binder of information including a cab
card, vehicle insurance information, and other documents; defendant gave Albee
unnecessary items, including bills for tire repairs; defendant volunteered that he had
been stopped several times during his trip and that his vehicle had been checked for
drugs; and defendant’s Illinois apportioned cab card did not match the displayed
California license plate. Albee testified that, based upon these facts, he reasonably
believed that defendant was involved in some type of criminal activity.
¶ 31 The totality of facts and circumstances known to Albee at the time of the search
distinguishes this case from the Campbell and Stout decisions. Albee relied on more
than the positive canine alert in deciding to search defendant’s vehicle. Given the
extensive evidence supporting Albee’s search of defendant’s vehicle independent
of the positive canine alert, Albee had probable cause to search defendant’s vehicle.
¶ 32 In so holding, we note that defendant consistently argues that the canine in this
case was trained on cannabis and alerted to cannabis and that the alert to cannabis
could not provide probable cause to search following passage of the Act. This is
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misleading, as the evidence established that the canine was trained to alert to crack
cocaine, methamphetamine, heroin, and ecstasy, as well as cannabis. There was no
evidence or testimony that the canine would alert differently to the different drugs.
Accordingly, at the time of the search, Albee only knew that the canine had alerted
to contraband. Albee did not know whether that contraband was crack cocaine,
methamphetamine, heroin, ecstasy or cannabis. That Albee discovered cannabis
upon searching the vehicle does not alter the information available to Albee at the
time of the search. As the appellate court in this case correctly recognized,
“[b]ecause Albee’s canine alerted to the presence of at least one of the foregoing
illegal substances, probable cause existed for the search of defendant’s vehicle.”
2022 IL App (4th) 210726-U, ¶ 37.
¶ 33 Because there was probable cause to search defendant’s semitrailer based upon
the totality of circumstances, as well as the canine’s positive alert to contraband, a
motion to suppress on the ground that a canine alert to cannabis did not provide
probable cause would have been unsuccessful. Trial counsel was not objectively
unreasonable in failing to file a futile motion to suppress, and defendant suffered
no prejudice from counsel’s decision not to do so. Defendant’s ineffective
assistance of counsel claim fails under either prong of Strickland, as he cannot
establish that his counsel’s performance was deficient or that defendant was
prejudiced by counsel’s failure to file a motion to suppress.
¶ 34 Finally, even if we were to assume that Albee solely relied upon the canine’s
positive alert in conducting his search, and disregard the fact that Albee’s canine
was trained to alert to other contraband in addition to cannabis, the unargued motion
to suppress would have been denied. This court’s precedent at the time trial counsel
filed defendant’s motion to suppress held that a positive alert from a drug-sniffing
canine, without more, was sufficient to establish probable cause to search. Despite
defendant’s arguments concerning changes to the case law following passage of the
Act, Campbell and Stout remain binding authority. To date, this court has not had
an opportunity to directly address the validity of the Campbell and Stout decisions
following the changes to cannabis legislation in Illinois. Accordingly, our circuit
and appellate courts are bound to apply that precedent to the “facts of the case
before them under the fundamental principle of stare decisis.” Yakich v. Aulds,
2019 IL 123667, ¶ 13. Had counsel filed a motion to suppress the cannabis in this
case on the basis that the canine sniff, without more, did not establish probable
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cause to search following passage of the Act, the trial court would have been bound
to apply Campbell and Stout and would have denied that motion. As we noted
above, an attorney will not be deemed deficient for failing to make an argument
that has no basis in law. King, 192 Ill. 2d at 197.
¶ 35 Because the canine alert in this case provided probable cause to search
defendant’s vehicle, a motion to suppress the evidence obtained from that search
would not have been meritorious. For that reason, defendant cannot establish
ineffective assistance of counsel under either prong of Strickland. Trial counsel’s
performance, judged by an objective standard of competence under prevailing
professional norms, was not so deficient that counsel was not functioning as the
“counsel” guaranteed by the sixth amendment. Nor was defendant prejudiced by
counsel’s failure to file a motion to suppress. We therefore affirm the appellate
court’s judgment rejecting defendant’s ineffective assistance of counsel claim.
¶ 36 CONCLUSION
¶ 37 For all of the foregoing reasons, we affirm the judgment of the appellate court
rejecting defendant’s claim of ineffective assistance of counsel and affirming the
judgment of the trial court.
¶ 38 Judgments affirmed.
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