United States v. Stephen DigiovanniUnited States v. Stephen Digiovanni
The Court amends its opinion filed July 25, 2011, as follows:
On page 12, second full paragraph, line 3 -- the word “second” is inserted before the word “prong.”
On page 20, lines 7, 10, and 11 -- “(6)” is replaced with “(8)“, “(8)” is replaced with “(9)“, and “(9)” is replaced with “(10)“.
For the Court - By Direction
/s/ Patricia S. Connor
Clerk
Appeal from the United States District Court for the District of Maryland, at Baltimore. Catherine C. Blake, District Judge. (1:09-cr-00421-CCB-1)
Before MOTZ and DIAZ, Circuit Judges, and HAMILTON, Senior Circuit Judge.
Affirmed by published opinion. Senior Judge Hamilton wrote the opinion in which Judge Motz and Judge Diaz joined.
COUNSEL
ARGUED: Ayn Brigoli Ducao, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellant. Marta Kahn, Baltimore, Maryland, for Appellee. ON BRIEF: Rod J. Rosenstein, United States Attorney, Baltimore, Mary-
OPINION
HAMILTON, Senior Circuit Judge:
The United States appeals from an order of the district court granting the motion to suppress certain evidence filed by the defendant, Stephen Digiovanni. We affirm.
I
On July 28, 2009, at approximately 11:53:00 a.m., Trooper Christopher Conner of the Maryland State Police observеd Digiovanni‘s car traveling northbound on Interstate 95 (I-95), in northeast Maryland, near the towns of North East and Perryville. In Trooper Conner‘s opinion, Digiovanni‘s car was traveling too close to the car in front of him, in violation of Maryland law. Consequently, Trooper Conner activated his patrol car‘s blue lights (which in turn activated his patrol car‘s video and recording equipment) and effectuated a stop of Digiovanni‘s car.
At approximately 11:53:39 a.m., Trooper Conner approached Digiovanni‘s car, now stopped on the right shoulder of the road, identified himself as a Maryland state trooper, and asked Digiovanni to provide his driver‘s license and the car‘s registration, explaining to Digiovanni that he was following the car in front of him “entirely too close.” In response, Digiovanni, who was the sole occupant of the car, indicated that the car he was driving was a rental car, so he provided the rental сontract, along with his Massachusetts driver‘s license. As Digiovanni handed over these items, Trooper Conner directed him to exit the car, which he did.1
While collecting Digiovanni‘s driver‘s license and the rental contract, Trooper Conner noticed two shirts hanging in the rear passenger compartment and a hygiene bag on the back seat. He also noticed the interior of the car was clean. At the suppression hearing, Trooper Conner testified that the hanging shirts suggested Digiovanni may be involved in drug trafficking activity, because, through his experience, non-drug traffickers traveling on vacation would have such items packed in a clothing bag. Trooper Conner also testified that the hygiene bag on the back seat was suggestive of drug trafficking activity, because there was no other visible luggage in the car. As for the clean condition of the interior of the car, Trooper Conner indicated this was suggestive of drug trafficking activity, because “[t]here was nothing in the vehicle indicating that [he was] living on the road, nonstop driving.”
At the suppression hearing, Trooper Conner testified that the rental contract also made him suspicious of drug trafficking activity. The rental contract indicated that the car was rented at Fort Lauderdale International Airport the previous day and was to be dropped off at Logan International Airport in Boston, at a cost of $438. Trooper Conner testified that Digiovanni‘s one-way, $438 car rental was “implausible.”
After Digiovanni exited the car, he walked to the reаr of the
At about 11:56:40, or a little more than three minutes into the stop, Trooper Conner turned his questioning to the subject of drug trafficking activity, because, in his opinion, he had reasonable suspicion that criminal activity was afoot. He asked Digiovanni if he had any luggage in the car and if everything in the car belonged to him. Digiovanni responded in the affirmative to both questions. After these two questions, Digiovanni said, “oh boy,” as he tossed the cigarette he was smoking over the guardrail. At the suppression hearing, Trooper Conner testified that he found this remark “extremely suspicious,” because “now he is saying oh boy in response to my questioning.” Trooper Conner then asked Digiovanni what was the matter, to which Digiovanni replied, “[i]t‘s just so hot.” Trooper Conner explained to Digiovanni that people smuggle drugs and guns up and down I-95, and that “a lot of good people . . . agree to take a box or something . . . [that] [t]hey really don‘t know what‘s in it.” Trooper Conner told Digiovanni that he was not accusing him of anything, but that he “had a job to do out here.” He asked Digiovanni if there was any marijuаna in the car. Digiovanni replied, “[n]o sir. I never smoked marijuana in my life. It puts me to sleep.”3
At the conclusion of approximately one minute and thirty-five seconds of questioning concerning drug trafficking activity, Trooper Conner turned his questioning to the subject of consent. Just before asking Digiovanni for consent to search the car, Trooper Conner told Digiovanni that he routinely searches cars “to make sure there‘s no drugs or guns” in them. In response to his request to search the car, Digiovanni replied, at 11:58:24 a.m., “[i]f you want to, that‘s not a problem.”
For the next three minutes or so, Digiovanni attempted to open the trunk of the car to allow Trooper Conner to search it, but he could not open it. According to Trooper Conner, he found this “extremely suspicious,” because Digiovanni, at some earlier time, was able to load his luggage in the trunk. He also testified that, in his experience, drug traffickers often disable the mechanism for opening the trunk.
After Digiovanni was unsuccessful in opening the trunk, Trooper Conner resumed his earlier line of questioning concerning drug trafficking activity at about 12:01:41 p.m. He asked Digiovanni if he was sure there was no marijuana in the trunk of the car, to which Digiovanni said that he was sure there was not. In response, Trooper Conner observed that he had “heard people say that before and then” found drugs, so he asked Digiovanni if he was sure, and Digiovanni responded that he was “positive.” Continuing this line of drug questioning, Trooper Conner asked, “[s]o if I bring my drug detection K-9, my partner аnd my drug detection K-9 up here, would there be any reason why the dog would alert to the vehicle?” Digiovanni replied, “[n]ot at all.” Trooper Conner
Trooper Conner returned to his vehicle at about 12:02:37 p.m. Trooper Conner requested back up assistance, because he “believed” Digiovanni “was engaged in criminal activity.” He then began the process of checking Digiovanni‘s driver‘s license, at 12:03:31 p.m., over ten minutes after Digiovanni was stopped. At approximately 12:07:22 p.m., Trooper Conner removed his hat, exited his patrol car, and approached Digiovanni. Although the driver‘s license check was not completed by this time, a dispatcher informed Trooper Conner that Digiovanni was not wanted on any outstanding warrants. Trooper Conner told Digiovanni he was “waiting on [the] license check,” adding that “things are looking good,” because he was not wanted on any warrants. At 12:08:15 p.m., Trooper Conner told Digiovanni he was “preparing” a warning ticket for him, adding that there was “no fine” and “no points.” At 12:08:25 p.m., Trooper Conner returned to Digiovanni his driver‘s license and the rental contract, and issued him a warning ticket and a brochure explaining “what to expect on a traffic stop.”4 At the same time, Trooper Conner said, “[h]ere you go, sir. You are free to go.” Immediately (12:08:27 p.m.), Trooper Conner reminded Digiovanni that they “were talking, . . . were talking about drugs.” He then observed that “we do have a bad problem out here, people smuggling drugs on the interstate.” After implying that
During the ensuing search, Trooper Conner and a backup police officer recovered 34,091 pills of Oxycodone and $1,450 in United States currency. Digiovanni was arrested and taken to the Maryland State Police JFK Highway Barracks in Perryville. At the police barracks, after being given Miranda warnings, Digiovanni made a detailed statement, explaining, among other things, that he was supposed to be paid $10,000 for transporting the pills and that he had transported pills once before.
On August 5, 2009, a federal grand jury sitting in the District of Maryland returned an indictment charging Digiovanni with possession with intent to distribute Oxycodone, in violation of
In its analysis, the district court observed that the initial stop of Digiovanni‘s car was “perfectly legitimate.” Since the initial stop was legitimate, the district court noted that the stop could last no longer than necessary given the stop‘s purpose, absent consent or reasonable suspicion. Because the purpose of the stop was to issue Digiovanni a warning ticket for traveling too close to a car in front of him, the district court
The district court next addressed the length of the stop, concluding that the stop lasted longer than necessary given that the purpose of the stop was to issue Digiovanni a warning ticket for traveling too close to the car in front of him. In so concluding, the district court found that Trooper Conner did not proceed with diligence in checking the validity of Digiovanni‘s driver‘s license, considering the driver‘s license check was not undertaken until approximately ten minutes into the stop. According to the district court, rather than checking the validity of Digiovanni‘s driver‘s license, Trooper Conner “diverted . . . from the ordinary purpose of the traffic stop” and embarked on an unwarranted investigation into drug trafficking that was not supported by reasonable suspicion. In rejecting the government‘s argument that reasonable suspicion supported the length of Digiovanni‘s detention, the district court noted that the car was rented in Florida and that Florida is a source state for drugs, as are many other states on the I-95 corridor. The district court found Digiovanni‘s purported initial nervousness of “limited” relevance, especially since there was “no fumbling in obtaining the license and rental contract” and Digiovanni was cooperative throughout the traffic stop. The district court also found Digiovanni‘s “oh boy” comment of limited relevance, because the comment was not made in response to a question, and Digiovanni immediately explained why he said “oh boy“--“[i]t‘s just so hot.” The district court further found that Digiovanni‘s travel itinerary was “somewhat unusual,” given the expense (including the cost of the Auto Train) and the distance Digiovanni was driving, though it found that the use of the Auto Train cut against the government‘s argument, because most drug traffickers would not want to surrender control of their cars to ride on the Auto Train. The district court noted that Digiovanni‘s appearance and demeanor fit
Finding no reasonable suspicion to support the length of Digiovanni‘s detention, the district court turned to the issue of whether Digiovanni‘s written consent was voluntary, and, if so, whether such consent attenuated the taint of the illegal detention. The district court found that, even though Trooper Conner used the buzz words, “you are free to go,” the encounter, under the circumstances, was not consensual. According to the district court, although Trooper Conner used these words and returned the driver‘s license and rental contract, in virtually the same breath, he immediately returned to the subject of drugs, implying, falsely, that Digiovanni was bоund by his earlier consent. The district court also noted that the coercive nature of the encounter was compounded by the fact that Trooper Conner stood in close proximity to Digiovanni. In view of all of the circumstances before it, the district court concluded the written consent was involuntary. Alternatively, the district court seemed to suggest that, even if the written consent was voluntary, it did not purge the taint of the illegal detention.
II
The government challenges the district court‘s decision, granting Digiovanni‘s motion to suppress. With regard to this challenge, we review the district court‘s factual findings for clear error and its legal conclusions de novo. United States v. Perkins, 363 F.3d 317, 320 (4th Cir. 2004).
The
When a police officer stops an automobile and detains the occupants briefly, the stop amounts to a seizure within the meaning of the
A traffic stop typically begins when a car “is pulled over for investigation of a traffic violation.” Arizona v. Johnson, 129 S. Ct. 781, 788 (2009). It typically ends when the police officer has “no further need to control the scene, and inform[s] the driver and passengers they are free to leave.” Id.
Because a traffic stop is more analogous to an investigative detention than a custodial arrest, we treat a traffic stop, whether based on probable cause or reasonable suspicion, under the standard set forth in Terry v. Ohio, 392 U.S. 1 (1968). Berkemer v. McCarty, 468 U.S. 420, 439 (1984); Pennsylvania v. Mimms, 434 U.S. 106, 109 (1977) (per curiam); United States v. Rusher, 966 F.2d 868, 875 (4th Cir. 1992).
Pursuant to Terry, we analyze the propriety of a traffic stop on two fronts. First, we analyze whether the police officer‘s action was justified at its inception. Rusher, 966 F.2d at 875. Second, we analyze whether the police officer‘s subsequent
With regard to Terry‘s first prong, there is no dispute that the traffic stop in this case, at its inception, was justified. See
Under Terry‘s second prong, the seizure must be limited both in scope and duration. Florida v. Royer, 460 U.S. 491, 500 (1983) (plurality opinion). With regard to the scope component, “the investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer‘s suspicion in a short period of time.” Id. With regard to the duration component, we evaluate “whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant.” United States v. Sharpe, 470 U.S. 675, 686 (1985); see also Illinois v. Caballes, 543 U.S. 405, 407 (2005) (noting that a traffic stop may become “unlawful if it is prolonged beyond the time reasonably required to complete [its] mission“); Royer, 460 U.S. at 500 (noting that the scope of a seizure “must be carefully tailored to its underlying justification,” and that the government bears the burden to “demonstrate that the seizure it seeks to justify . . . was sufficiently limited in scope and duration tо satisfy the conditions of an investigative seizure“). In the context of traffic stops, police diligence involves requesting a driver‘s license and vehicle registration, running a computer check, and issuing a ticket. United States v. Foreman, 369 F.3d 776, 781 (4th Cir. 2004); see also Branch, 537 F.3d
While conducting the tasks associated with a traffic stop, a police officer‘s “questions or actions . . . need not be solely and exclusively focused on the purpose of that detention.” United States v. Mason, 628 F.3d 123, 131 (4th Cir. 2010). Rather, a police officer may ask questions unrelated to the purpose of the stop, “provided that the unrelated questioning does not extend the encounter beyond the period reasonably necessary to effectuate the purposes of the lawful detention.” Id.; see also Johnson, 129 S. Ct. at 788 (holding that a law enforcement officer‘s questions “into matters unrelated to the justification for the traffic stop . . . do not convert the encounter into something other than a lawful seizure,” provided those questions “do not measurably extend the duration of the stop“); Muehler v. Mena, 544 U.S. 93, 101-02 (2005) (holding that unrelated questioning that did not extend a seizure did not violate the
Both Mena and Johnson make clear that unrelated questioning during an investigative stop, including a traffic stop, does not run afoul of the scope component of Terry‘s second prong. See United States v. Everett, 601 F.3d 484, 494 n.10 (6th Cir. 2010) (noting that Mena and Johnson “stand for the proposition that mere questioning--on any subject--cannot violate the scope prong of Terry,” and, “[t]herefore, where Terry‘s duration prong is not at issue, as in [those cases], the subject of the questioning” is irrelevant.). In Mena, police officers
While Mena did not involve a traffic stop, the Supreme Court‘s decision in Johnson did. There, while one police officer was performing the routine tasks associated with a traffic stop, another police officer asked a passenger about gang affiliation. 129 S. Ct. at 784. As in Mena, the unrelated questioning in Johnson, though outside the scope of the detention, did not extend the length of time in which the defendant was detained. Id. at 784-88.
In Everett, the Sixth Circuit addressed whether unrelated questioning that lengthens a defendant‘s detention gives rise to a
Recently, in Mason, we addressed the duration component of Terry‘s second prong in the context of a traffic stop. There, the defendant was pulled over for having excessively tinted
To summarize, a traffic stop must be reasonable both in its scope and duration. Royer, 460 U.S. at 500. Although there is some debate whether the scope component survives the Supreme Court‘s decisions in Mena and Johnson, see, e.g., Reid M. Bolton, Comment, The Legality of Prolonged Traffic Stops After Herring: Brief Delays as Isolated Negligence, 76 U. Chi. L. Rev. 1781, 1786-87 (2009), the scope of a police officer‘s actions during a traffic stop still is relevant to the reasonableness analysis under the
Turning to our case, we agree with the district court that Trooper Conner failed to diligently pursue the purposes of the stop and embarked on a sustained course of investigation into the presence of drugs in the car that constituted the bulk of the encounter between Trooper Conner and Digiovanni. In the beginning, the traffic stop in this case stayed close to the script approved in cases such as Branch and Foreman. Branch, 537 F.3d at 337; Foreman, 369 F.3d at 781. Trooper Conner asked Digiovanni for his driver‘s license and the vehicle‘s registration. Understandably, he asked Digiovanni to exit the car. See Mimms, 434 U.S. at 111 n.6 (holding that, “оnce a motor vehicle has been lawfully detained for a traffic violation, the police officers may order the driver to get out of the vehicle without violating the
On appeal, the government makes four arguments seeking to excuse Trooper Conner‘s lack of diligence. First, the government argues that any delay caused by the unrelated questioning was de minimis, and, therefore, Digiovanni‘s
We reject the government‘s reliance on Mason. The delay in this case was not de minimis. The unrelated questioning was extensive and time-consuming. It started with some unrelated questioning concerning Digiovanni‘s travel plans and morphed into unrelated questioning concerning the prеsence of drugs. The record, in particular the video, makes clear that at just about every turn Trooper Conner was conducting a drug investigation instead of a traffic infraction investigation. Indeed, the bulk of the encounter between Trooper Conner and Digiovanni involved a drug investigation, as the driver‘s
Second, the government argues that, because the overall length of the traffic stop (approximately fifteen minutes) was reasonable, there was no
We have emphasized that “[t]he maximum acceptable length of a routine traffic stop cannot be stated with mathematical precision.” Branch, 537 F.3d at 336; see also United States v. Brigham, 382 F.3d 500, 511 (5th Cir. 2004) (noting that there is “no constitutional stopwatch on traffic stops“); see also Robinette, 519 U.S. at 39 (noting that the determination of reasonableness does not lend itself to bright-line rules). This is so because а multitude of factors can affect the length of a traffic stop, some working in favor of the government, others in favor of the defendant. For example, some computer checks will take longer than others, depending on the speed of the computers involved and whether the car‘s occupants possess in-state or out-of-state identifications. Cf. United States v. Boyce, 351 F.3d 1102, 1106-07 (11th Cir. 2003) (noting that a reasonable delay in obtaining the results of a criminal history check does not run afoul of the
More importantly, the government‘s argument fails to recognize that investigative stops must bе limited both in scope and duration. Creating a rule that allows a police officer fifteen minutes to do as he pleases reduces the duration component to a bright-line rule and eliminates the scope inquiry altogether. In its reasonableness jurisprudence, the Supreme
Third, the government contends that Trooper Conner was entitled to abandon the traffic infraction purpose of the stop because he had reasonable suspicion that criminal activity was afoot. The concept of “reasonable suspicion” “is not readily, or even usefully, reduced to a neat set of legal rules, but, rather, entails common sense, nontechnical conceptions that deal with factual and practical considerations of everyday life on which reasonable and prudent persons, not legal technicians, act.” Foreman, 369 F.3d at 781.
The Supreme Court has recognized that factors consistent with innocent travel can, when taken together, give rise to reasonable suspicion. United States v. Sokolow, 490 U.S. 1, 9 (1989) (“Any one of these factors is not by itself proof of any illegal conduct and is quite consistent with innocent travel. But we think taken together they amount to reasonable suspicion.“). The articulated innocent factors collectively must serve to eliminate “a substantial portion of innocent travelers before the requirement of reasonable suspicion will be satisfied.” Foreman, 369 F.3d at 781.
The reasonable suspicion standard is an objective one, so we examine the facts within the knowledge of Trooper Conner to determine the presence or nonexistence of reasonable suspicion. Id. “Additionally, it must be noted that, because the Terry reasonable suspicion standard is a commonsensical proposition, ‘[c]ourts are not remiss in crediting the practical exрerience of officers who observe on a daily basis what transpires on the street.‘” Id. at 782 (quoting United States v. Lender, 985 F.2d 151, 154 (4th Cir. 1993)).
In deciding to prolong the traffic stop to allow for an investigation into drug trafficking activity, Trooper Conner relied
In United States v. Foster, 634 F.3d 243 (4th Cir. 2011), we expressed “concern about the inclination of the Government toward using whatever facts are present, no matter how innocent, as indicia of suspicious activity.” Id. at 248. The same can be said about many of the facts relied upon by Trooper Conner. Trooper Conner‘s reliance on the hanging shirts borders on the absurd. He labeled them as suspicious because non-drug traffickers would pack the shirts in a clothing bag. While it is true that we rely upon the “experience and specialized training” of the police officer, United States v. Johnson, 599 F.3d 339, 343 (4th Cir. 2010), the “Government must also be able to either articulate why a particular behavior is suspicious or logically demonstrate, given the surrounding circumstances, that the behavior is likely to be indicative of some more sinister activity than may appear at first glance.” Foster, 634 F.3d at 248. Here, the government offered no plausible explanation to support Trooper Conner‘s reliance on the two hanging shirts. Equally absurd is Trooper Conner‘s reliance on the clean car and the hygiene bag on the back seat. The vast majority of rental сars are delivered to the renter clean, and, considering that Digiovanni took the Auto Train, it is not surprising that the car was clean when it was stopped by Trooper Conner. And there is nothing suspicious about a hygiene bag located on the back seat of a car.
There is no question that Trooper Conner was entitled to rely to some degree on Digiovanni‘s trembling hands. See Illi-nois v. Wardlow, 528 U.S. 119, 124 (2000) (“[N]ervous, evasive behavior is a pertinent factor in determining reasonable suspicion“). However, the district court understandably discounted this fact, because, as the video reveals, Digiovanni appeared calm and cooperative throughout the encounter. See Mason, 628 F.3d at 129 (relying on police officer‘s testimony that an innocent individual‘s initial nervousness usually subsides). With regard to the “oh boy” comment, we cannot disturb the district court‘s finding that this comment was not an expression of nervousness (and could not plausibly be construed as such), but rathеr a comment concerning the hot July weather. Moreover, our review of the video reveals that Trooper Conner‘s characterization of the “oh boy” comment, as well as his reliance on Digiovanni‘s answer to his “[s]o you‘re coming from Florida?” question, are examples of “post hoc rationalizations to validate those seizures that happen to turn up contraband.” Foster, 634 F.3d at 249.
With regard to the car rental, the traveling on I-95, and the traveling from Florida factors, there is little doubt that these facts enter the reasonable suspicion calculus. See United States v. Brugal, 209 F.3d 353, 358 (4th Cir. 2000) (en banc) (citing car rental travel along I-95 from a source city as factors contributing to reasonable suspicion). With regard to Digiovanni‘s travel itinerary, Trooper Conner certainly was entitled to rely, to some degree, on its unusual nature in determining whether criminal activity was afoot. Id. at 360-61 (noting that an unusual travel itinerary, coupled with other facts, can support a finding of reasonable suspicion).
Nevertheless, we agree with the district court that reasonable suspicion was not present to turn this routine traffic stop into a drug investigation. The articulated facts, in their totality, simply do not eliminate a substantial portion of innocent travelers. Id. at 361. When he was stopped, Digiovanni was traveling from Florida on I-95 in a car he rented the previous day. For part of the trip, he took the Auto Train. Digiovanni‘s Auto Train trip clearly cuts against the government‘s argu-
Finally, the government argues that Digiovanni‘s voluntary written consent to search the car was an act of free will that purged the taint of any alleged
Although the
Whether a defendant‘s consent to a search is voluntary is a factual question, and, therefore, is reviewed under the clearly erroneous standard. Bustamonte, 412 U.S. at 248-49. We may reverse the district court‘s finding concerning voluntariness only if “it can be said that the view of the evidence taken by the district court is implausible in light of the entire record.” United States v. Lattimore, 87 F.3d 647, 651 (4th Cir. 1996).
In assessing voluntariness of the consent, we examine the totality of the circumstances including factors such as the characteristics of the accused, his education and intelligence, the number of officers present, along with the location and duration of the stop. Id. Whether the person giving consent knew that he possessed a right to refuse consent also is relevant in determining the voluntariness of consent, although the government need not dеmonstrate that the person giving consent knew of his right to refuse consent to prove that the consent was voluntary. Id.; United States v. Boone, 245 F.3d 352, 362 (4th Cir. 2001).
In this case, we cannot say that the district court‘s finding that Digiovanni‘s written consent was involuntary is implausible. On the one hand, Digiovanni was in his late 50s, neither
Moreover, Trooper Conner‘s false implication that Digiovanni was bound by his earlier consent and his “hold on a second” statement also suggest that the seizure continued. While it is true that a consent obtained during an illegal detention may be voluntary, Boone, 245 F.3d at 362-63, we simply cannot say that it is implausible to conclude that Digiovanni‘s consent was involuntary, whether he still was seized or not. The false implication mentioned above and the “hold on a second” statement set this case apart and lend suрport to the plausible conclusion that a reasonable person would not have felt free to decline Trooper Conner‘s request to search the car. See United States v. Sullivan, 138 F.3d 126, 132 (4th Cir. 1998) (noting that a court must decide, given the totality of the circumstances, whether “a reasonable person in the suspect‘s position ‘would have felt free to decline the officers’ requests or otherwise terminate the encounter‘“) ((quoting
III
For the reasons stated herein, the judgment of the district court is affirmed.
AFFIRMED