Pubdate: Wed, 10 Mar 1999
Source: Willamette Week (OR)
Contact:  822 SW 10th Ave., Portland, OR 97205
Fax: (503) 243-1115
Website: http://www.wweek.com/
Author: Maureen O'Hagan
Note: This article started on the front page and contains three significant
sidebars (associated stories), below.

KNOCK, KNOCK, YOU'RE BUSTED

How Portland Cops Push The Limits Of The Law To Crack Down On Pot Growers.

Want to see a pot grower shake in his Birkenstocks? It's as easy as
knocking on his front door.

That's because over the last few years, a simple knock-knock-knock has come
to be recognized as the official calling card of the Portland Police
Bureau's Marijuana Task Force, which has busted pot growers at the
astonishing rate of almost one every working day.

While there's no real way to measure whether the task force has dampened
Portland's ganja habit, the group has taken truckloads of pot off the
street. In four years, officers have hauled in about 30,000 marijuana
plants and arrested at least 750 growers. They've seized hundreds of
thousands in assets under laws that allow authorities to confiscate a drug
dealer's ill-gotten gains. That the task force has accomplished this with
just six officers makes the record even more impressive--and more curious
to those who question its methods.

Other than the tragic 1998 marijuana bust of Steven Dons, which left one
police officer dead and two others wounded, the task force has been
virtually unstoppable. Time and time again, defense lawyers have argued
that the task-force tactics are coercive and invade of citizens' privacy--a
belief that even some police officers and prosecutors have privately told
WW they share. Butt those arguments haven't been proven in the courtroom.

In the ongoing cat-and-mouse game between growers and the law, the law has
clearly been winning. If the pot growers have their way, however, the task
force could soon lose one of its most potent secret weapons.

On March 16 Multnomah County Circuit Judge Michael Marcus will make a
ruling on motions filed by 14 criminal-defense lawyers who claim that the
task force has been illegally gathering evidence against pot suspects. The
arguments date back to last summer, when a marijuana grower discovered that
for three years, the task force had been surreptitiously monitoring phone
calls to a store that sells indoor gardening supplies and using that
information to target suspects. To pot growers, the discovery was like a
Holy Grail: If Judge Marcus decides in favor of the defense lawyers'
motions, current charges against some growers could eventually be dismissed.

At this point, it's difficult to predict what will happen in the courtroom.
But no matter what Judge Marcus rules, some say the discovery of the phone
monitoring is just one more bit of evidence in a mounting case against the
task force. That's not to say this is a bunch of rogue cops acting outside
of the law. But when looked at as a whole--from the secret phone monitoring
to the scores of convictions--the task forces starts bearing a resemblance
to Big Brother.

"You have to do a lot of these cases before you start getting that funny
feeling," says Michelle Burrows, a defense lawyer. "If all of the judges
knew all of the facts of all of these cases, they would sit back in their
chairs and say, 'Something smells funny here.'"

That the task force is going after marijuana--which this state's voters
have approved as a medical treatment and decriminalized in small
quantities--makes the smell that much more sour.

For at least 20 years, pot connoisseurs nationwide have believed that some
of the best bud is grown in Oregon.

Years ago, when marijuana cultivation was strictly an outdoor activity, it
made perfect sense. With Oregon's moist climate and abundant federal forest
land on which to grow, the illegal crops thrived.

In the last decade or so, that practice became too risky: Not only were the
crops easy prey for thieves, but police began using airplanes, which made
the once-hidden caches easier to spot. As a result, pot farming moved indoors.

Now illicit gardeners use expensive halide lights and hydroponic equipment,
which allows the plants to grow without soil. Light, heat and nutrients can
be carefully controlled and replicated, whether you're in Astoria or
Antarctica. What's more, a new crop can be harvested every three or four
months instead of once a year.

Still, whether it's because of tradition, this state's relatively lax
marijuana laws or some sort of collective unconscious that gives us greener
thumbs, Oregonians continue to have a reputation as primo pot growers.

Of course, growing quantities of marijuana is still against the law. So as
the marijuana growers changed their methods, so did the authorities. In
1995, the Portland Police Bureau formed a specialized Marijuana Task Force
and came up with new ways to target the indoor crops.

The task force was the brainchild of Sgt. James Hudson, then a 17-year
veteran of the bureau who was assigned to the Drug and Vice Division.
Hudson (nicknamed "Gator" for his alma mater, Florida State University)
believes that marijuana is as dangerous as other drugs, and he says it's
also more prevalent.

With Chief Charles Moose's stamp of approval and a federal grant, Hudson
recruited three other veteran Drug and Vice Division officers--Kim Keist,
Nate Shropshire and Brian Schmautz--who have formed the core of the task
force ever since. What's notable about the group is what they're
not--stereotypical jug-head types who'd rather tackle you than talk.
Instead, they're hard-working, relatively laid back and, most of all,
clever. Some of the stoners they arrest even call their captors nice.

The group's superiors call them effective. In its first year, the task
force made 302 arrests, well over one every working day. That translates
into a per officer arrest rate three times higher than the rest of the Drug
and Vice Division.

The Marijuana Task Force says the area was ripe for a crackdown. "Growers
in this region present a target rich environment," the most recent Drug and
Vice Division annual report says, "and are there for the taking as fast as
the task force can get to them."

Not only is Portland a "target rich environment," but it boasts
comparatively rich targets. The task force takes advantage of civil
forfeiture laws, which allow authorities to seize any cash and property
that can be tied to drug dealing. The tool is extra potent against pot
growers.

"More than any other group we deal with on drug offenses, people that grow
marijuana are otherwise fairly middle class," says Mark McDonnell, who
heads one of two drug units in the district attorney's office. "A much
greater percentage hold down a job, own a home."

In the task force's first year of existence, marijuana-related forfeitures
more than covered the officers' salaries, something the rest of the Drug
and Vice Division couldn't even imagine. Last year, the task force seized
22 houses from accused pot growers, compared to the two houses the rest of
the Drug and Vice Division seized from other types of drug offenders.

The task force officers are good at what they do, but there's something
more to their success than skill and hard work. For several years, they've
been able to keep one of their tools--the stealth device that leads them to
growers in the first place--a closely guarded secret.

A secret, that is, until a pot grower named Neil Hauser came along.

When the Oregon State Police came knocking on Hauser's door last spring, he
just couldn't figure it out.

There's no question the Bend resident was growing 83 marijuana plants--that
much Hauser concedes. But what, he wondered, gave him away?

Hauser isn't the only guy who has asked this question. "For a long time, a
lot of us were in a puzzlement," says defense lawyer Pat Birmingham. "How
were they selecting our clients?"

With a little investigation of his own, Hauser found the answer, something
top defense lawyers had been trying to do for several years. All it took
was some acting--a little game of cops and stoners, if you will. Only this
time, the tables were turned.

In mid-June, Hauser called the Portland Police Bureau and got task-force
member Shropshire on the line. What happened next is a matter of debate.
Shropshire says that Hauser claimed to be a Bend police officer; Hauser
denies telling that lie, although he did drop some carefully calculated
suggestions to that effect.

In any case, with a few open-ended questions, Hauser wheedled the whole
story out of Shropshire. The cop told Hauser that the task force had used a
device known as a "trap and trace" that was secretly put on the phone of
American Agriculture, a business on Southeast 92nd Avenue and Stark Street
that sells lighting and growing equipment. (For a transcript of the
conversation between Shropshire and Hauser, visit www.wweek.com.) [See
below - ed.] The device is, in essence, like Caller ID, except the police,
not American Agriculture, get the numbers of every customer who calls the
business. The cops then use the customers' phone numbers to learn their
addresses--and, more importantly, to develop a list of suspects.

"For the most part," Shropshire told Hauser, "we start all our
investigations that way."

The idea was ingenious: Hit the growers where they shop. The police won't
say whether they're still using the device.

Hauser knew he had discovered something important. He had called American
Agriculture, and the task force must have tipped off the police in Bend. As
it happens, Hauser's case was dismissed because of a technicality. More
important, an ex-lawyer named Larry Olstad heard his story and began
spreading the word about trap and trace.

When the folks at American Agriculture found out their phone was, in
essence, tapped, they weren't very happy. Word is they're considering a
civil lawsuit, but the owners of the company did not return a call from WW.
It's clear, however, that they have a gripe. After all, none of their
products are illegal. And their customers aren't limited to pot growers. In
fact, even Judge Marcus, the jurist who is scheduled to rule on the issue
Tuesday, revealed in court that he once bought something from the company,
a blue plastic barrel used for training his dogs.

The reaction from the defense bar was swift. "The difference between what
these guys are doing and a legitimate police investigation is they have no
specific, probable-cause belief that a crime is being committed," says
defense lawyer Burrows. (Probable cause is an important legal safeguard
that protects citizens from unfair police intrusion.)

Working from initial research done by Olstad, a number of lawyers joined
together to challenge the legality of the use of the trap and trace device.
Last month, during a day-long hearing in Marcus' courtroom, the city and
the DA's office argued that the police had a court order to use the device.
Defense lawyers countered that they've used it too broadly and for too long.

The statute regulating trap and trace, they pointed out, is very narrowly
construed. It requires police to establish probable cause that a crime is
being committed and obtain a court order, which is only good for 30 days.
The idea is to put constraints on police so they don't use it like a "gill
net," says Olstad.

But that's exactly what the task force did, according to a number of
defense lawyers.

First, they point out, a phone call to a legitimate business is skimpy
evidence on which to open an investigation. Defense lawyer Bob Thuemmel
calls the tactic Orwellian.

"The use of the device appears to be geared to all individuals who call
American Agriculture, whether it is a Dr. Feelgood type looking for the
latest in marijuana technology or old Mrs. Peabody down the street whose
dahlias need something more in the way of spring fertilizer," he wrote in
court papers.

It's hard to tell exactly how many of the people on which the task force
opens investigations turn out to be law abiding. Officer Keist has
testified that about half of the investigations turn up nothing.

Defense lawyers have also hammered on the issue of the 30-day limit.
Although authorities aren't talking, it appears that they applied for an
extension of the court order every month. Even so, the use of the device
for three years seems to violate the spirit, if not the letter, of the law.

Judge Marcus will decide on Tuesday whether the defense is entitled to more
information on the use of the device. From there, the lawyers may then
argue that charges against their clients should be dismissed. Their
argument is based on a legal theory known as the "fruit of the poison
tree": If the use of the device is found to be illegal, any evidence found
while using it is tainted and should be thrown out.

Whether or not they're successful in this case, defense lawyers say the use
of trap and trace is part and parcel of a larger method of operation that
goes right up to the edge of what is lawful.

"I think what's sort of startling is the way that the courts analyze these
legal doctrines," says Margee Paris, a criminal law professor at University
of Oregon. "They break it down into these little pieces, and at the end
they find it was all legal. But when you look at the whole picture, it
becomes very disturbing."

The defense lawyers say that the only way to truly understand what they are
arguing is to look at the way the task force operates.

Every month, officers downloaded the phone numbers of American Agriculture
customers from the trap and trace device and used them to develop a list of
suspect addresses. Police say they try to screen out law-abiding citizens
by first checking electricity records for unusual power usage. Critics feel
this, too, is an invasion of privacy. Normally, power companies consider
these records so private that they will turn them over only to the
subscriber. Moreover, a high electricity bill isn't evidence of a crime.
After all, you could be using American Agriculture products to grow
hydroponic tomatoes.

After that initial screen comes the "knock and talk." Although the
technique didn't get widespread publicity until the 1998 Steven Dons
fiasco, in which Hudson and Keist were wounded and Officer Colleen Waibel
was killed, Portland officers have been using it since 1985. Well over half
the time, when a smooth-talking task-force officer (like Schmautz, who
studied acting) knocks on a door, he's allowed inside. Even marijuana
growers usually agree to these "consent searches." In most cases, finding a
crop of the green stuff is as simple as that--no time-consuming search
warrant necessary. Police say that's because even crooks feel guilty.
"People who do things that are wrong have a conscience," says Capt. James
Ferraris, who heads the Drug and Vice Division.

Others disagree that guilt is the motivating factor. "The Portland Police
Bureau...will go up to a person's front door and not take no for an
answer," says defense lawyer Birmingham.

In light of the evidence, the complaint may sound hollow. Most of the
people investigated, after all, are guilty of a crime. When law abiding
citizens are swept into their net, though, things look different.

Just ask Denise and Michael Harrington. The Laurelhurst couple runs a
well-regarded company that teaches people to communicate better. One of
their larger clients is Nike, which has hired them to work with Ken Griffey
Jr. and Tiger Woods. A few years ago, they even conducted a seminar for the
Portland Police Bureau. The Harringtons live in a neighborhood of perfectly
manicured lawns, with Volvos and baby strollers outside each door.

A year or so ago, the couple was surprised to open their door to two
plainclothes police officers from the Marijuana Task Force. "They said they
had a complaint we were growing marijuana," Denise Harrington recalls. "We
just about died laughing." Even though the officers had badges, they
flashed them quickly, and then asked to come in. "They could be anybody,"
she says. From watching cop shows on TV, she knew she didn't have to let
them in. So she and her husband said no.

"They said if people don't let them come in, they take it to the next
level," Denise says. "They said, 'We'll continue investigating until we
find out what's going on.' They got a little harder in the way they were
talking to us."

Soon three more officers showed up; one was in the neighbor's driveway
peering into the Harrington's yard. "They're hanging around, they're
embarrassing you in your neighborhood," Denise says. "It's escalating. It's
so stressful that they really intimidate you into making decisions to give
up your rights."

After almost two hours, the Harringtons let the police inside. The officers
conducted a thorough search but found nothing.

"It was a picture, to me, that you are guilty until proven innocent in
their minds," Michael Harrington says.

The Harringtons, who had only lived in their house for a few months at the
time, have no idea why police showed up. They have never called American
Agriculture, but it's possible that a previous owner did. Police won't say
what led them there, but the investigation is now closed.

Aside from the use of the trap and trace device, the task force's
techniques have thus far been upheld by the courts, despite the arguments
of defense lawyers.

"I heard a judge compare the Marijuana Task Force to a tax consultant,"
recalls Deputy DA McDonnell. "If you hire a tax consultant, he's going to
do everything he can legally to get you all your deductions. I think the
citizens expect the police to do everything they can within the bounds of
the law to apprehend criminals."

But their zealousness has raised questions, even among cops and
prosecutors. While they aren't criticizing their colleagues, some have
privately told WW they have mixed feelings about aggressive marijuana
prosecution. Though the drug is illegal, they consider it far less
problematic than other substances, even alcohol. In addition, they say the
task force works very hard, but it doesn't send many people to prison.
That's because lawmakers, voters and judges in this state have ranked
marijuana growing a lesser concern than other crimes. Moreover, according
to the DA's office, most pot growers they prosecute are first-time
offenders. And most first-time growers only get probation, plus some jail
time or a work release program.

There's also the memory of Colleen Waibel.

"I think there's a new look at these things," says police union vice
president Tom Mack. "We're getting killed over things that judges are
sentencing people to less than six months for."

Another officer puts it more bluntly. "I don't want any more policewomen
killed because someone is smoking a joint," he says.

In truth, questions about the task force are more ones of policy and
priorities than of law. For now, however, it's a policy the Police Bureau
has no plans to change, according to Drug and Vice Division head Ferraris.
"They have been very successful," he says. "At this point it's a viable
unit of the Drug and Vice Division, and I certainly don't see it being
dissolved or abolished in the near future."

The question is: What are citizens willing to sacrifice in order to fight
the war on drugs?

"Police depend on people's respect for law enforcement to get their jobs
done, and these cases abuse that respect," says Ed Jones, a public
defender. "This is really a self-defeating program. What they're doing is
encouraging people to not answer the door and not be respectful to the
police. But that note probably won't come due until long after these cops
are retired."

[sidebar notes:]

Last year, Oregon voters approved medical marijuana legislation allowing
people with "debilitating" illnesses to use and grow up to seven pot plants.

Sgt. James Hudson's quick thinking cut short Steven Dons' attack. He
retired from the force after the traumatic event.

Over the past few years, forfeitures have decreased for two reasons. The
cops have grown more conservative in what they seize, and drug offenders
are renting instead of owning homes.

Officer Kim Keist testified more than a year ago that the task force had
conducted about 1,500 knock and talks.

"If all of the judges knew all of the facts of all of these cases, they
would sit back in their chairs and say, 'Something smells funny here.'"
- --lawyer Michelle Burrows

Deputy District Attorney Mark McDonnell says he's not worried about the
latest legal challenge to the Marijuana Task Force: "I expect we'll get
convictions in all these cases."

American Agriculture already sued the Portland Police once for aggressive
surveillance tactics, settling the case in May 1997.

Police say as few as 10 plants, harvested throughout the year, can be worth
as much as $30,000 to $40,000.

When the police come to your door without a warrant, you don't have to let
them in. But they are not legally required to tell you that you may refuse
their request, either.

Even Judge Marcus, the jurist who is scheduled to rule on the issue
Tuesday, revealed in court that he once bought something from American
Agriculture

Defense lawyer Pat Birmingham says police use "bluffing and intimidation"
in their "consent" searches.

American Agriculture may file a civil lawsuit against the police.

After he or she gathers evidence of a crime, it usually takes an officer
two to four hours to get a search warrant. A knock and talk is much more
efficient.

A handbook used by the Marijuana Task Force says "knock and talks increase
arrests, [and] the agency also realizes funds from asset seizure with only
minimal investigative expense."

After downloading your phone number from the trap and trace, police usually
wait three or four months to knock on your door. That's how long it takes
marijuana seedlings to bud.

"The Portland Police Bureau...will go up to a person's front door and not
take no for an answer." --defense lawyer Pat Birmingham

Although police initially seize ownership of pot growers' homes, that
doesn't mean a grower has to move. Normally, growers enter into plea
bargains and forfeit just a portion of the equity in their home.

Michelle Burrows, who specializes in defending drug suspects whose property
is seized, has trained other lawyers on the Marijuana Task Force's techniques.

[LEAD STORY SIDEBAR}

In early June, after he was arrested for growing marijuana, Bend resident
Neil Hauser called the Portland Police Bureau and asked to speak with the
Marijuana Task Force. He was connected with Nate Shropshire, a 16-year
veteran of the Bureau. By means that Hauser won't reveal, he got Shropshire
to talk about Task Force techniques. Hauser called back a second time and
pumped Shropshire for more information, this time recording the conversation.

Lawyers challenging the Task Force's techniques have included a transcript
of this conversation in public court files.

"NS" stands for Nate Shropshire. "RC" stands for Rex Cattock, the pseudonym
Hauser used during the conversation.

Although Hauser's marijuana case was dismissed, he was charged with
impersonating an officer because of his talks with Shropshire.

Woman What can I help you with?

Man Yes, is Nate Shropshire back there?

Woman Umm...I can check to see. Can I ask who's calling?

Man Yes, this is umm...umm...anyway Rex Cattock.

Woman I'm sorry. Say again?

Man Rex Cattock.

Woman Hold on a sec.

RC Hey Nate.

NS Hey.

RC This is Rex. How ya doing?

NS Good.

RC Calling back from Bend here.

NS Yeah.

RC How was your little excursion?

NS Oh, it was OK. I just didn't have enough people to help me do what I
need to do because we had two houses next door growing outdoor plants, and
so I got one, OK? And then other ones--they were like 11 two-inch dead
clones [marijuana seedlings] almost in the back yard--and we just went over
and grabbed and said, "Forget it. Forget it."

RC Do you get a lot of the outdoor stuff over there?

NS No, not really.

RC Really?

NS Sometimes, you know, in the summer, but for the most part, we don't. All
of their stuff is indoors.

RC Sure. I know. I didn't think you had time to do anything on that, but I
wanted to call back and see when...how long it might take you to get that
information.

NS It will just take me...ahhh...long enough to run through the...ahhh...I
have all that stuff on disk.

RC OK.

NS If it's there I'll, ahhh, bring it up.

RC What does that mean. You got a disk?

NS I have a disk that I get sent from, actually I download, ahh, what I'm
doing is I have this company who is a...they sell indoor growing stuff.

RC Oh, OK.

NS Basically. And what we did in 1995...I started investigating it,
actually before that, but we wrote a trap and trace order on their phone
number, so everybody who calls into their phone number is trapped and then
I, you know, write in that court order. I've got information from US West.

RC OK.

NS We simply download every week via computer.

RC Really...

NS ...and all that information so then I take that information [and] run it
through the power companies.

RC Umm, OK.

NS And then those, you know...we just go from there.

RC Sure.

NS And I, ahh, you know, ahh, a lot of it [how we choose whom to target]
has to do with age of people, type of power, type of house.

RC Sure.

NS You know. You have a lot of people look at it, and for the most part, we
start all our investigations that way, and ahh, go from that to a knock and
talk.

RC So, ahh, the shop is actually working with you.

NS Ohh, no, no, no...

RC Oh.

NS They have no clue.

RC OK.

NS They have no clue that we are trapping the phone numbers.

RC Oh, OK.

NS So, ahh...

RC No, I remember hearing that there was two or three light shops over there.

NS There's...there's, yeah, there's American Agriculture, Light
Manufacturing, and...ahh...Rain or Shine.

RC Oh, OK. I think I've heard that one before.

NS And ahh...you know...

RC And you've got all three of those.

NS No. I just have the one, American Agriculture. I have done the Light
Manufacturing, but it wasn't as profitable.

RC OK.

NS Theirs is pretty much smaller, you know, ahh, personal use, hydroponic
growers.

RC OK.

NS So that means that we don't have that one going. We do have the one
going right now at American Ag.

RC So you worked it out with US West? That's great.

NS Well, I have a court order that allows me to do it. I, ahh, you know,
every 30 days I re-up that court order.

RC OK.

NS And, ahh, so, get the information back and that's when we start passing
it off. I mean, if it's in Bend and if it's places where we're not going to
get to...

RC Sure. You pass it on.

NS...Through DOJ [the Department of Justice] we'll pass them off, and if I
know somebody in a particular area, I'll call them and say, "Hey, we got
this going, and this is the way, this is how we got it."

RC Sure.

NS Don't, you know...try not to use it in an affidavit.

RC Sure.

NS We have not ever referred to the trap in our affidavits.

RC OK.

NS And...ahh...you know, if we, if that's all we had, then we probably
wouldn't, you know...

RC Correct. Then you would just build it off of there.

NS That's, yeah, we just go from there, but ahh...

RC With their 800 number, you probably get calls all over the country.

NS Well, we don't trap their 800 number. What we do is order calls...

RC Ohh, OK.

NS It's an interesting thing.

RC Ohh...

NS Yeah, you're right. I mean, the last time we did that, we had...I mean
the stack of paper was like a half of ream, and we did...we sent that to
DOJ and the DOJ disseminated the information all over the place. They got
some guy down in California as a result of that.

RC Keeping them busy.

NS Yeah.

RC That's fantastic. Well, I have to take off tomorrow. Umm...why don't I
get back to you on Friday. Are you going to be around on Friday?

NS No.

RC No, OK, why don't I give you a call mid-week.

NS OK.

RC We are in no big hurry and I appreciate everything.

NS OK.

RC And I'll give you a call probably Wednesday.

NS OK. What was your phone number?

RC My number is 388-5551. And I will give you a buzz on Wednesday. I
appreciate everything that you've done.

NS You bet.

RC Alright, sir.

NS Alright.

RC Take it easy.

NS Bye.

RC Bye.

[Sidebar:]

SNIFF AND GRAB

One of the most frequently cited examples of how far the Marijuana Task
Force will go in its efforts to catch pot growers is the use of a technique
defense lawyer Bruce Howlett has nicknamed the "sniff and grab."

Under normal circumstances, police can't enter someone's home without
either the resident's permission or a warrant. The only exception is in
"exigent circumstances"--for example, if there's a hostage situation
inside. Simply growing marijuana doesn't qualify.

Task Force Officer Brian Schmautz has perfected an ingenious way to get
around that constraint. When a suspect refuses to give Schmautz permission
to enter the house--and when Schmautz believes he can smell growing
marijuana--he reaches out as if to shake hands with the suspect. The
suspect, naturally, reaches across the threshold to return the gesture.

Instead of shaking hands, though, Schmautz grabs the suspect's arm and
yanks him outside. Once he gets the suspect out the front door, Schmautz
can legally place him under arrest on suspicion of growing marijuana.
Schmautz described it this way in one report: "I shook hands with him and
thanked him for his time. As I was shaking hands with him, I took his hand
into custody, and the remainder of his body followed out of the doorway."

Schmautz wouldn't talk to WW about his technique, but defense lawyers say
he uses it whenever he gets the chance.

The handshake trick is not unheard of in police circles, although it may be
more acceptable in apprehending, say, a murderer than a marijuana grower.
There is no doubt that it's "pushing the envelope," according to one law
enforcement source. Another told WW, "[It's] not crossing the line, but
it's walking the line."
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MAP posted-by: Richard Lake