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The People v. Douglas George Schmitz

December 3, 2012

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
DOUGLAS GEORGE SCHMITZ, DEFENDANT AND APPELLANT.



Ct.App. 4/3 G040641 Orange County Super. Ct. No. 06HF2342

The opinion of the court was delivered by: Corrigan, J.

This case involves the constitutional limits of a vehicle search based on a passenger's parole status. Here, an officer, aware that the front seat passenger was on parole, searched the backseat of defendant's car and recovered drugs and drug paraphernalia from a chips bag and a pair of shoes. Defendant, the driver, sought to suppress that evidence. We conclude that the search was reasonable under the Fourth Amendment to the United States Constitution. We hold that the Constitution permits a search of those areas of the passenger compartment where the officer reasonably expects that the parolee could have stowed personal belongings or discarded items when aware of police activity. Additionally, the officer may search personal property located in those areas if the officer reasonably believes that the parolee owns those items or has the ability to exert control over them.

I. FACTUAL AND PROCEDURAL BACKGROUND

Early in the evening of November 24, 2006, Deputy Sheriff Mihaela Mihai saw defendant's car turn into a dead-end alley lined with the garages of a condominium complex. When defendant then made a U-turn, Mihai stopped alongside his car and asked whether he was lost. Defendant said no, that he had driven into the alley to avoid making a U-turn on the street. Mihai got out of her car and asked defendant for his driver's license. As defendant complied, Mihai observed that his arms were covered with abscesses, which she associated with drug use. Asked if defendant was on probation or parole, defendant said, "No." Mihai then asked him for permission to search the car. Defendant did not respond.

Defendant had three passengers: a man in the front seat, and a woman and her small child in the back. The male passenger said he was on parole. Mihai searched the car on that basis after removing the occupants. In the backseat area, she found a syringe cap in a woman's purse,*fn1 two syringes in a chips bag, and some methamphetamine in a pair of shoes.

Defendant waived a preliminary hearing on resulting charges, but moved to suppress the evidence.*fn2 The suppression hearing took place in a misdemeanor courtroom. Most of the proceedings were not reported. The judge approved a settled statement of the unreported portion of the officer's testimony. The record does not reflect the condition of the items searched or their precise location in the backseat. The officer had no memory of the style of the shoes.

After defendant's suppression motion was denied, he pleaded guilty to four misdemeanor counts.*fn3 The trial court suspended imposition of sentence and placed defendant on informal probation for three years on condition he serve 90 days in the county jail. Defendant appealed from the denial of his suppression motion.

The Court of Appeal reversed, holding that the search could not be justified on the basis of the front seat passenger's parole status. It articulated an extremely broad rule that defendant Schmitz, as the driver, "clearly had a reasonable expectation of privacy in his glove box, his console, his door pockets, his own seat, the backseat--indeed every part of his car except the front passenger seat where the parolee was sitting. . . . Nothing Schmitz did could reasonably have been viewed as ceding authority over his backseat to the parolee. The parolee had no right to open packages, eat food, or even read magazines he found in the backseat."*fn4

We reverse the judgment of the Court of Appeal and clarify the permissible scope of a vehicle search based on a passenger's parole status.

II. DISCUSSION

Challenges to the admissibility of evidence obtained by a police search and seizure are reviewed under federal constitutional standards. (Cal. Const., art. I, § 24; People v. Lomax (2010) 49 Cal.4th 530, 564, fn. 11; People v. Woods (1999) 21 Cal.4th 668, 674 (Woods).) A warrantless search is unreasonable under the Fourth Amendment unless it is conducted pursuant to one of the few narrowly drawn exceptions to the constitutional requirement of a warrant. (U.S. Const., 4th Amend.; Arizona v. Gant (2009) 556 U.S. 332, 338 (Gant); Woods, supra, 21 Cal.4th at p. 674; People v. Bravo (1987) 43 Cal.3d 600, 609.) California's parole search clause is one of those exceptions. (Samson v. California (2006) 547 U.S. 843, 846, 850-857 (Samson).)

Under California statutory law, every inmate eligible for release on parole "is subject to search or seizure by a . . . parole officer or other peace officer at any time of the day or night, with or without a search warrant or with or without cause." (Pen. Code, § 3067, subd. (b)(3).) Upon release, the parolee is notified that "[y]ou and your residence and any property under your control may be searched without a warrant at any time by any agent of the Department of Corrections [and Rehabilitation] or any law enforcement officer." (Cal. Code Regs., tit. 15, § 2511, subd. (b)(4); see also Cal. Code Regs., tit. 15, § 2356 [requiring the department staff to notify the prisoner of the conditions of parole before release].) There is no dispute that the passenger was on parole and subject to the standard search clause. The Attorney General defends the search solely on that basis.

When considering constitutional challenges to warrantless and suspicionless parole searches based on a search condition, courts weigh the privacy interests of the parolee against society's interest in preventing and detecting recidivism. Both we and the United States Supreme Court have concluded that such searches are reasonable, so long as the parolee's status is known to the officer and the search is not arbitrary, capricious, or harassing. (See Samson, supra, 547 U.S. at pp. 846, 850-856; People v. Sanders (2003) 31 Cal.4th 318, 332-334 (Sanders); People v. Reyes (1998) 19 Cal.4th 743, 750-754 (Reyes).) "[P]arolees . . . have severely diminished expectations of privacy by virtue of their status alone." (Samson, supra, 547 U.S. at p. 852.) "As a convicted felon still subject to the Department of Corrections, a parolee has conditional freedom--granted for the specific purpose of monitoring his transition from inmate to free citizen." (Reyes, supra, 19 Cal.4th at p. 752.) The state, by contrast, "has an ' "overwhelming interest" ' in supervising parolees because 'parolees . . . are more likely to commit future criminal offenses.' Pennsylvania Bd. of Probation and Parole, 524 U.S., at 365 (explaining that the interest in combating recidivism 'is the very premise behind the system of close parole supervision')." (Samson, supra, 547 U.S. at p. 853.) "The state has a duty not only to assess the efficacy of its rehabilitative efforts but to protect the public . . . ." (Reyes, supra, 19 Cal.4th at p. 752.) Accordingly, a parolee does not have a legitimate expectation of privacy that would prevent a properly conducted parole search. (Samson, supra, 547 U.S. at p. 852; Reyes, supra, 19 Cal.4th at p. 754.)

Different considerations are present, however, when a parole search affects the privacy interests of third parties. In the context of a residential search, we have expressed no doubt that " 'those who reside with [a person subject to a search condition] enjoy measurably greater privacy expectations in the eyes of society' " than those enjoyed by the parolee. (Sanders, supra, 31 Cal.4th at p. 329, quoting People v. Robles (2000) 23 Cal.4th 789, 798 (Robles).) Here, we consider the permissible scope of a parole search that infringes on the privacy of a third party driving a car with a parolee passenger. The facts here raise two distinct questions. First, what is the permissible scope of the search of the car's interior? Second, what is the permissible scope of a search of property located in the car?

We have encountered similar questions in the context of a residential search. In Woods, supra, 21 Cal.4th 668, police officers searched a house based on the probation status of one of the residents. We held that evidence found in the house's only bedroom was admissible against two other residents who were not probationers. (Id. at pp. 672, 681-682.) We observed that "[i]n California, probationers may validly consent in advance to warrantless searches in exchange for the opportunity to avoid service of a state prison term. [Citations.]" (Id. at p. 674.)*fn5 Relying on the "common authority" theory of consent, we concluded that, if others live with a probationer, the shared areas of their residence may be searched based on the probationer's consent, given in advance by agreeing to a search condition. (Id. at pp. 674-676, citing Schneckloth v. Bustamonte (1973) 412 U.S. 218 and United States v. Matlock (1974) 415 U.S. 164, 170.)*fn6 We emphasized, however, that our holding would not "legitimize unreasonable searches with respect to nonprobationers who share residences with probationers. In all cases, a search pursuant to a probation search clause may not exceed the scope of the particular clause relied upon. [Citation.] Nor may such a search be undertaken in a harassing or unreasonable manner. [Citations.] Moreover, officers generally may only search those portions of the residence they reasonably believe the probationer has complete or joint control over. [Citation.]" (Woods, supra, 21 Cal.4th at pp. 681-682.)

In Robles, supra, 23 Cal.4th 789, we reaffirmed that, if someone lives with a probationer, "common or shared areas of their residence may be searched by officers aware of an applicable search condition." (Id. at p. 798, citing Woods, supra, 21 Cal.4th 668, and Russi v. Superior Court (1973) 33 Cal.App.3d 160.) We further observed that nonprobationers "maintain normal expectations of privacy over their persons. In addition, they retain valid privacy expectations in residential areas subject to their exclusive access or control, so long as there is no basis for officers to reasonably believe the probationer has authority over those areas." (Robles, supra, at p. 798.) We found the search unreasonable as to the nonprobationer, Robles, because the officers were unaware that the other resident was on probation. A fortuitous subsequent discovery of a probation search clause could not be relied upon to justify the search. (Id. at pp. 798-800.)

In Sanders, supra, 31 Cal.4th 318, we considered a Fourth Amendment challenge to a warrantless search of a home occupied by two people, "one of whom was on parole and subject to a search condition of which the police were unaware at the time of the search." (Id. at p. 322.) Addressing the nonparolee's challenge to the search, we observed that the nonparolee "had a reduced expectation of privacy because she was living with a parolee subject to a search condition . . . ." (Id. at p. 330.) We concluded, however, that she " 'need not anticipate that officers with no knowledge of the probationer's existence or search condition may freely invade their residence in the absence of a warrant or exigent circumstances.' " (Ibid., quoting Robles, supra, 23 Cal.4th at p. 799.) In extending the holding of Robles to require that officers know of a resident's parole search condition before conducting the search, we declined to distinguish between probation and parole searches for this purpose, concluding that "the expectation of privacy of cohabitants is the same whether the search condition is a condition of probation or parole." (Sanders, supra, 31 Cal.4th at p. 330.)

A. The Officer's Search of the Backseat of the Car Was Reasonable

This court has not addressed the permissible scope of a vehicle search based on a passenger's parole status. We begin with the premise, uncontested by either party, that Deputy Mihai engaged in a search by physically entering defendant's car to look for contraband and property related to the parolee. (See New York v. Class (1986) 475 U.S. 106, 111, 114-115.)*fn7 The burden is on the People to justify the warrantless search as reasonable. (Vale v. Louisiana, supra, 399 U.S. at p. 34; Johnson, supra, 38 Cal.4th at p. 723; Williams, supra, 20 Cal.4th at p. 127.)

The Court of Appeal relied on the consent-based "common authority" standard employed in Woods to conclude that the permissible scope of the parole search was narrowly confined to the parolee's person and the seat he occupied. It reasoned that only persons with " 'common or superior authority' " over an area can authorize a search, and that "that rule means the police may 'only search those portions of the [property] they reasonably believe the probationer has complete or joint control over.' " It observed that "there was no evidence that Schmitz, merely by allowing a parolee to ride as a passenger in his car, ceded to that parolee any authority over the car at all, let alone the authority to permit inspections of the vehicle's interior 'in his own right.' " Accordingly, it concluded that "[a] mere passenger in a vehicle, who claims neither a possessory nor property interest therein, lacks the 'common authority' over the vehicle which would allow him either to consent or object to its search."

The Court of Appeal's reliance on Woods led it astray. We conclude the rationale employed in Woods, justifying a search based on advance consent by a cohabitant probationer "with common or superior authority over the area to be searched" (Woods, supra, 21 Cal.4th at p. 675), is unworkable when applied to this parolee, who was a mere passenger in defendant's automobile.*fn8 There are significant distinctions between the residential probation search in Woods, and the search of defendant's car based on his passenger's parole status.

Homes and cars are afforded different levels of Fourth Amendment protection. "[T]he 'physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.' " (Payton v. New York (1980) 445 U.S. 573, 585.) There is good reason to limit a warrantless, suspicionless residential search to areas where an officer reasonably believes the parolee or probationer exercises "common authority." (Woods, supra, 21 Cal.4th at pp. 674-676; United States v. Matlock, supra, 415 U.S. at p. 171, fn. 7.) "The authority which justifies the third-party consent . . . rests . . . on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched." (United States v. Matlock, supra, 415 U.S. at p. 171, fn. 7.) The sanctity of the home demands recognition that persons living with a probationer or parolee "retain valid privacy expectations in residential areas subject to their exclusive access or control, so long as there is no basis for officers to reasonably believe the probationer has authority over those areas." (Robles, supra, 23 Cal.4th at p. 798; accord, Sanders, supra, 31 Cal.4th at pp. 329-330.)

By contrast, "the expectation of privacy with respect to one's automobile is significantly less than that relating to one's home or office." (South Dakota v. Opperman (1976) 428 U.S. 364, 367, fn. omitted; accord, Indianapolis v. Edmond (2000) 531 U.S. 32, 54.) Both drivers and passengers have a reduced expectation of privacy in the interior of a car and its contents because cars " 'trave[l] public thoroughfares,' Cardwell v. Lewis, 417 U.S. 583, 590 (1974), 'seldom serv[e] as . . . the repository of personal effects,' ibid., are subjected to police stop and examination to enforce 'pervasive' governmental controls '[a]s an everyday occurrence,' South Dakota v. Opperman, 428 U.S. 364, 368 (1976), and, finally, are exposed to traffic accidents that may render all their contents open to public scrutiny." (Wyoming v. Houghton (1999) 526 U.S. 295, 303 (Houghton).) Accordingly, "warrantless examinations of automobiles have been upheld in circumstances in which a search of a home or office would not." (South Dakota v. Opperman, supra, at p. 367.)

The Court of Appeal also failed to consider that Woods, unlike this case, involved a probation search. Our previous cases have drawn a clear distinction between probation and parole with regard to consent. A probationer explicitly agrees to being placed on probation, often in exchange for an opportunity to avoid incarceration in state prison. Likewise, a probationer who is subject to a search clause has explicitly consented to that condition. (Woods, supra, 21 Cal.4th at p. 674; People v. Bravo (1987) 43 Cal.3d 600, 605-607; People v. Mason (1971) 5 Cal.3d 759, 764, disapproved on another ground in People v. Lent (1975) 15 Cal.3d 481, 486, fn. 1.) By contrast, in parole cases we have not relied on the consent principle that naturally applies in probation. In Reyes we explained that "under the Determinate Sentencing Act of 1976, parole is not a matter of choice. The Board of Prison Terms must provide a period of parole; the prisoner must accept it." (Reyes, supra, 19 Cal.4th at p. 749, citing Pen. Code, § 3000 et seq.)*fn9 Finding a consent analysis inapt, we adopted a totality of the circumstances balancing test to evaluate the reasonableness of a warrantless and suspicionless parole search. (Reyes, supra, at pp. 753-754; accord, Samson, supra, 547 U.S. at p. 848.) This approach, unlike the consent exception to the warrant requirement, recognizes the state's compelling interest to supervise parolees and to ensure compliance with the terms of their release. It also recognizes that "parolees have fewer expectations of privacy than probationers, because parole is more akin to imprisonment than probation is to imprisonment." (Samson, supra, at p. 850.)

"The touchstone of the Fourth Amendment is reasonableness . . . ." (United States v. Knights (2001) 534 U.S. 112, 118-119 (Knights).) "When faced with . . . diminished expectations of privacy, minimal intrusions, or the like, the Court has found that certain general, or individual, circumstances may render a warrantless search or seizure reasonable." (Illinois v. McArthur (2001) 531 U.S. 326, 330; accord, People v. Robinson (2010) 47 Cal.4th 1104, 1120.)

Whether a search is reasonable within the meaning of the Fourth Amendment depends on the " 'totality of the circumstances.' " (Samson, supra, 547 U.S. at p. 848; Ohio v. Robinette (1996) 519 U.S. 33, 39.) This test includes an assessment of the degree to which a search promotes legitimate governmental interests, balanced against the degree to which it intrudes upon an individual's privacy. (Samson, supra, at p. 848; Houghton, supra, 526 U.S. at p. 300.) Both we and the United States Supreme Court have employed traditional standards of reasonableness to evaluate the constitutionality of warrantless vehicle searches*fn10 and parole searches.*fn11 Accordingly, we consider whether the officer's search here was reasonable, with a "salient circumstance" being the presence of a parolee subject to a search condition. (Knights, supra, 534 U.S. at p. 118; accord, Samson, supra, 547 U.S. at p. 848; Sanders, supra, 31 Cal.4th at p. 333.)

We reject at the outset the Court of Appeal's suggestion that the interior of defendant's car was not subject to any modicum of search based on the passenger's status as a parolee subject to a search condition.*fn12 Emphasizing that defendant was not on parole, and that there was "no evidence [defendant] knew his passenger was a parolee," the Court of Appeal found that defendant "gave up none of his own expectation of privacy, nor of his authority to prevent the officer's search of the vehicle." However, " '[o]ur [inquiry] is not what the privacy expectations of particular defendants in particular situations may be . . . . Our [inquiry], in terms of the principles announced in Katz [v. United States (1967) 389 U.S. 347], is what expectations of privacy are constitutionally "justifiable" . . . .' " (Hudson v. Palmer (1984) 468 U.S. 517, 525, fn. 7, quoting United States v. White (1971) 401 U.S. 745, 751-752 (plurality opn. of White, J.).) Here, defendant knowingly allowed passengers to ride in his car, thereby opening its interior to them and allowing them to see and access some of its contents. (Cf. United States v. Jacobsen (1984) 466 U.S. 109, 117; Smith v. Maryland (1979) 442 U.S. 735, 743-744.) Once an officer learns of the passenger's parole status (see Sanders, supra, 31 Cal.4th at p. 330; Robles, supra, 23 Cal.4th at p. 799),*fn13 and informs the driver of it, the driver cannot reasonably expect to shield the interior of the car completely from any search aimed at uncovering criminal activity by the parolee. However, the driver can reasonably expect that the scope of the search will be " ' strictly tied to and justified by ' " the circumstances authorizing it (Terry v. Ohio (1968) 392 U.S. 1, 19), and that the search will not be conducted in an arbitrary, capricious, or harassing manner (Woods, supra, 21 Cal.4th at p. 682; Reyes, supra, 19 Cal.4th at pp. 752-754; see also Samson, supra, 547 U.S. at p. 856).

The Court of Appeal's focus on defendant's ignorance of his passenger's parole status when admitting him to the car is misplaced. We have never suggested that a probation or parole search of a house would be unlawful unless a defendant knew his or her cohabitant was a probationer or a parolee. No good reason appears to create such a rule for vehicle searches. Because the primary purpose of the exclusionary rule is to deter unlawful police conduct, the operative question is whether the officer knew of the passenger's parole status before conducting the search. (See Sanders, supra, 31 Cal.4th at pp. 324, 332-335; Robles, supra, 23 Cal.4th at pp. 799-800; see also id. at p. 800 ["a knowledge-first requirement is appropriate to deter future police misconduct and to effectuate the Fourth Amendment's guarantee against unreasonable searches and seizures"].)

Turning to the scope of the search, our state statute specifies only that the parolee "is subject to search or seizure by a . . . parole officer or other peace officer at any time of the day or night, with or without a search warrant or with or without cause." (Pen. Code, § 3067, subd. (b)(3).) While that statute provides authority for the search, it does not purport to define its scope in any given case. Rather, the limits of a parole search flow from the nexus between the parolee and the area or items searched. How we define that nexus depends on the totality of the circumstances, and takes into account such factors as the nature of that area or item, how close and accessible the area or item is to the parolee, the privacy interests at stake, and the government's interest in conducting the search.

As noted, the state's interest in supervising parolees is substantial. (Samson, supra, 547 U.S. at p. 853.) Parolees " 'are more likely to commit future criminal offenses' " (ibid.) and pose "grave safety concerns that attend recidivism" (id. at p. 854).*fn14 Additionally, because of their conditional release into society, parolees have an even greater "incentive to conceal their criminal activities and quickly dispose of incriminating evidence than the ordinary criminal . . . ." (Knights, supra, 534 U.S. at p. 120 [discussing probationers]; accord, Samson, supra, at pp. 854-855 [the "incentive-to-conceal concern" applies with "even greater force" to parolees].) Warrantless, suspicionless searches are a vital part of effective parole supervision (Reyes, supra, 19 Cal.4th at p. 752; Samson, supra, at p. 854), and are mandated in California as a condition of every parolee's release (Pen. Code, § 3067, subd. (b)(3); Cal. Code Regs., tit. 15, § 2511, subd. (b)(4)).

On the other side of the balance, as noted, a driver has a reduced expectation of privacy with regard to an automobile. (South Dakota v. Opperman, supra, 428 U.S. at p. 368; Cardwell v. Lewis (1974) 417 U.S. 583, 590.) A driver's expectation of privacy is further diminished when he allows others to ride in his car, thus ceding some measure of privacy to them. (Cf. United States v. Jacobsen, supra, 466 U.S. at p. 117; Smith v. Maryland, supra, 442 U.S. at pp. 743-744; Sanders, supra, 31 Cal.4th at p. 330.)

The Court of Appeal placed the passenger parolee in a legal bubble and concluded that defendant retained a reasonable expectation of privacy in "every part of the car except the front passenger seat where the parolee was sitting." In so holding, it artificially segmented the car's interior and improperly limited the permissible scope of a search strictly to the parolee's person and the seat he or she occupies. No authority supports such a circumscribed approach.

To the contrary, the law does not presume that a front seat passenger has nothing to do with items located elsewhere in the passenger compartment of a car. In Maryland v. Pringle (2003) 540 U.S. 366, a police officer conducting a routine traffic stop obtained the driver's consent to search the car. He located a large sum of cash in the glove box and five plastic baggies containing cocaine hidden behind the backseat armrest. Upon questioning, the driver and two passengers declined to say who owned the drugs or money. (Id. at pp. 368-369.) Observing that the baggies of cocaine were in an area "accessible" to all three passengers, the court found it "an entirely reasonable inference from these facts that any or all three of the occupants [including the front seat passenger] had knowledge of, and exercised dominion and control over, the cocaine," thus justifying their arrests. (Id. at p. 372.) Similarly, in People v. Vermouth (1971) 20 Cal.App.3d 746, police officers stopped a car for a traffic violation. The Court of Appeal held that the officers had probable cause to arrest both the passenger and the driver for possession of a billy club seen resting against the driver's door. (Id. at p. 756.)

Moreover, the Court of Appeal's rigid view does not reflect modern social conventions, which provide a framework for assessing whether an expectation of privacy is reasonable. (Oliver v. United States (1984) 466 U.S. 170, 178 & fn. 8; Rakas v. Illinois (1978) 439 U.S. 128, 143, fn. 12; cf. Georgia v. Randolph (2006) 547 U.S. 103, 111-112.) The vehicle here was a noncommercial five-passenger car. Typically, automobile occupants do not act as if they were confined in separate divided compartments, coats and other possessions piled on their laps, elbows clamped at their sides. A front seat passenger, even if only a casual acquaintance of the driver, will likely feel free to stow personal items in available space at his or her feet, in the door pocket, or in the backseat, until they are needed or the journey ends. Even if the driver's personal preferences are otherwise, it is not reasonable to expect that the passengers will always adhere to them. The driver is not necessarily in a position to supervise his passengers at every moment, nor is he in a position to control their every move once they are in the car. As the Houghton court observed, an occupant of an automobile may hide contraband without the other occupants' knowledge or permission. (Houghton, supra, 526 U.S. at p. 305.) For these reasons, the permissible scope of a search is "not defined by the subjective intent of those asserting the rights." (Hudson v. Palmer, supra, 468 U.S. at p. 525, fn. 7.) Rather, a reasonable officer may take all of the circumstances into account when conducting a parole search of an automobile for property, contraband, or weapons associated with the parolee.*fn15

In addition, a standard five-passenger automobile generally affords ready access to areas in both the front and back seats. (See New York v. Belton (1981) 453 U.S. 454, 460 (Belton), holding limited in part on another ground in Gant, supra, 556 U.S. 332, 344-348.) This fact is particularly significant given the Supreme Court's observation that parolees have a heightened incentive to conceal or quickly dispose of incriminating evidence. (Samson, supra, 547 U.S. at pp. 854-855; accord, Knights, supra, 534 U.S. at p. 120.) A parolee, more than an ordinary passenger, may be expected to conceal contraband or weapons in places other than on his person, well aware that his own privacy rights are severely limited. Under the Court of Appeal's approach, a parolee passenger could frustrate a valid parole search simply by sitting in the front seat of the car and placing or discarding his belongings in the back. Imposing such an artificially narrow rule frustrates ...


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