Sandlin, Lawrence Clark ( 2015 )

PD-1000-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 8/4/2015 3:23:58 PM
No. _______________ Accepted 8/6/2015 2:14:26 PM
ABEL ACOSTA
CLERK
COURT OF CRIMINAL APPEALS
OF TEXAS
The State of Texas,
Appellant August 6, 2015
v.
Lawrence Clark Sandlin
from the Court of Appeals for the
Fifth Judicial District at Dallas
05-14-00072-CR
STATE’S PETITION FOR DISCRETIONARY REVIEW
An appeal from the 416th Judicial District Court, Collin County, Texas
The Honorable Chris Oldner, Judge Presiding
Greg Willis
Criminal District Attorney
Collin County, Texas
John R. Rolater, Jr.
Chief of the Appellate Division
Emily Johnson-Liu
Assistant Criminal District Attorney
2100 Bloomdale Rd., Suite 200
McKinney, TX 75071
State Bar No. 24032600
(972) 548-4323 FAX (214) 491-4860
ejohnson-liu@co.collin.tx.us
Identity of Judge, Parties, and Counsel
Trial Court............................THE HONORABLE CHRIS OLDNER
Presiding Judge
416th District Court
Collin County, TX
Appellant ..............................THE STATE OF TEXAS
Greg Willis
District Attorney
Matt Rolston
(Former) Assistant District Attorney
TRIAL COUNSEL
Emily Johnson-Liu
Assistant District Attorney
APPELLATE COUNSEL
Collin County District Attorney’s Office
2100 Bloomdale Rd., Suite 200
McKinney, Texas 75071
Appellee ................................LAWRENCE CLARK SANDLIN
John Gioffredi
4131 N. Central Expressway, Ste 680
Dallas, Texas 75204
TRIAL COUNSEL
Jerry D. Kelly
4131 N. Central Expressway, Ste 110
Dallas, Texas 75204
APPELLATE COUNSEL
i
Table of Contents
Identity of Judge, Parties, and Counsel .................................................... i
Index of Authorities.................................................................................. iv
Statement Regarding Oral Argument ...................................................... 1
Statement of the Case ............................................................................... 1
Statement of Procedural History .............................................................. 1
Grounds for Review ................................................................................... 2
Issue One
An officer’s reliance on the mandatory blood-draw
provision for DWIs with a child passenger (Transp.
Code § 724.012(b)(2)) was reasonable under the
Fourth Amendment and did not require suppression
of the blood-test results. (RR 5-25)
Issue Two
Given that a motion for rehearing was and still is
pending in State v. Villarreal and thus Villarreal does
not have the status of law, the court of appeals erred
in treating Villarreal as dictating the result in the
instant case.
The Facts and Issues Argued Below ......................................................... 2
Argument ................................................................................................... 6
I. The blood results should not have been suppressed ........................... 6
A. Reasonable under the Fourth Amendment ..................................... 6
B. Sanction of exclusion is not warranted ............................................ 7
ii
II. The court of appeals should not have given Villarreal
the weight of controlling authority ................................................... 10
Prayer for Relief ...................................................................................... 13
Certificate of Service ............................................................................... 13
Certificate of Compliance ........................................................................ 13
Appendix: Opinion of the Court of Appeals
iii
Index of Authorities
Cases
Cole v. State, No. PD-0077-15
(granted Apr. 22, 2015) ................................................................... 7,9,10
Davis v. United States, 131 S. Ct. 2419
(2011)....................................................................................................... 8
Holidy v. State, No. PD-0622-14
(granted Aug. 20, 2014) .......................................................................... 6
Illinois v. Krull, 480 U.S. 340
(1987)....................................................................................................... 7
Karenev v. State, 281 S.W.3d 428
(Tex. Crim. App. 2009) ............................................................................ 7
Lloyd v. State, 453 S.W.3d 544
(Tex. App.—Dallas 2014, pet. ref ’d) .................................................. 5,10
Missouri v. McNeely, 133 S. Ct. 1552
(2013)................................................................................................... 1, 3
Reeder v. State, No. 0601-14
(granted Aug. 20, 2014) .......................................................................... 6
State v. Mayorga, 876 S.W.2d 176
(Tex. App.—Dallas 1994), aff'd, 901 S.W.2d 943.................................... 9
State v. Mayorga, 901 S.W.2d 943
(Tex. Crim. App. 1995) ............................................................................ 9
State v. Mazuca, 375 S.W.3d 294
(Tex. Crim. App. 2012) ............................................................................ 9
State v. Sandlin, No. 05-14-00072-CR, 2015 WL 294660
(Tex. App.—Dallas Jan. 22, 2015
(not designated for publication) ........................................................ 1, 4, 5
iv
State v. Smith, No. PD-1615-14
(granted Feb. 11, 2015) ........................................................................... 7
State v. Villarreal, PD-0306-14, 2014 WL 6734178
(Tex. Crim. App. Nov. 26, 2014), reh’g granted (Feb. 25, 2015)......... 4, 5
Wong Sun v. United States, 371 U.S. 471
(1963)....................................................................................................... 9
Yeager v. State, 727 S.W.2d 280
(Tex. Crim. App. 1987) .................................................................... 10,11
Statutes, Codes, and Rules
Tex. Code Crim. Proc. art. 38.23 ............................................................... 8
Tex. Penal Code § 49.045............................................................................... 1, 3
Tex. Transp. Code § 724.012(b) ..................................................... 2,3,5,6,7
Tex. R. App. P. 66.3(b) ............................................................................... 6
Tex. R. App. P. 66.3(f).............................................................................. 10
Tex. R. App. P. 68.2(a) ............................................................................... 1
v
To the Honorable Court of Criminal Appeals of Texas:
Statement Regarding Oral Argument
The State does not request argument.
Statement of the Case
Lawrence Sandlin was indicted for DWI with a child passenger.
CR 7; Tex. Penal Code § 49.045. Sandlin filed a motion to suppress the
results of his blood test based on Missouri v. McNeely, 133 S. Ct. 1552
(2013). CR 17-19. The trial court granted the motion, and the State
appealed. CR 20.
Statement of Procedural History
The court of appeals handed down its opinion on January 22,
2015. State v. Sandlin, No. 05-14-00072-CR, 2015 WL 294660 (Tex.
App.—Dallas Jan. 22, 2015) (not designated for publication). The State
timely filed a motion for rehearing on February 6, 2015, which was
denied July 14, 2015. This petition is thus timely filed on or before
August 13, 2015. Tex. R. App. P. 68.2(a).
1
Grounds for Review
Issue One
An officer’s reliance on the mandatory blood-
draw provision for DWIs with a child passenger
(Transp. Code § 724.012(b)(2)) was reasonable
under the Fourth Amendment and did not
require suppression of the blood-test results.
(RR 5-25)
Issue Two
Given that a motion for rehearing was still
pending in State v. Villarreal and thus
Villarreal did not have the status of law, the
court of appeals erred in treating Villarreal as
dictating the result in the instant case.
The Facts and Issues Argued Below
I. The offense
In June 2012—nine months before the Supreme Court’s April
2013 decision in Missouri v. McNeely—Officer Roger Smith pulled
Lawrence Sandlin over for making an unsafe lane change that forced
the police officer out of his lane. RR 5-8. Sandlin, who was driving a
Mini Cooper, had his 8-year-old daughter with him in the car and
admitted he had been drinking alcohol. RR 9, 11. Based on Sandlin’s
performance on the standard battery of field sobriety tests, Officer
2
Smith arrested Sandlin for DWI with a child passenger under Penal
Code § 49.045. RR 10-11.
Sandlin refused the officer’s request to voluntarily provide a
breath or blood specimen. RR 12. Relying solely on Transportation Code
§ 724.012(b)(2), which mandates a blood draw when a suspect is
arrested for DWI with a child passenger, Officer Smith directed a nurse
to take a sample of Sandlin’s blood. RR 13, 15, 17.
II. The trial court
Sandlin moved to suppress his blood-test results under Missouri v.
McNeely, 133 S. Ct. 1552 (2013). CR 17-19. At the suppression hearing,
Sandlin’s counsel admitted that Officer Smith’s actions were
“completely understandable.” RR 18. After all, the officer was relying on
a statute which, at the time, had not yet “come into question.” RR 15,
18. Nevertheless, Sandlin argued that McNeely required suppression of
warrantless blood draws conducted under the statute. RR 18-19. The
prosecutor took the opposite position, arguing that Texas’s implied
consent law in Transportation Code chapter 724 authorized the blood
draw despite McNeely. RR 19-20. The trial judge sided with Sandlin and
explained that he was “troubled” by the argument that implied consent
3
could override a suspect’s express refusal. RR 21, 23-25. The State
appealed.
III. The court of appeals
In its brief to the Fifth District Court of Appeals in Dallas, the
State argued that Sandlin’s warrantless blood draw was justified under
the Fourth Amendment because Sandlin, like any other driver, had
given his implicit but irrevocable consent under a statutory framework
that legitimately aimed to protect the public from the carnage caused by
drunk drivers.
While the instant case was still pending in the Dallas court, this
Court issued its original opinion in Villarreal. State v. Villarreal, PD-
0306-14, 2014 WL 6734178, at *11 (Tex. Crim. App. Nov. 26, 2014),
reh’g granted (Feb. 25, 2015). Although Villarreal was not yet final and
a motion for rehearing had been filed in Villarreal,1 the Fifth Court of
Appeals issued its opinion in the instant case, relying on Villarreal to
affirm the suppression of the blood results. Sandlin, 2015 WL 294660.
The Dallas court quoted Villarreal at length in disposing of the State’s
complaint on appeal:
The State filed a motion for rehearing in Villarreal in December 2014.
1
4
In this case, the State argues that Sandlin gave implied
consent to provide a breath or blood specimen which was
irrevocable under section 724.012(b) of Texas
Transportation Code because he had a child passenger in
the vehicle with him. In Villarreal, however, the Texas
Court of Criminal Appeals specifically rejected this
argument:
To the extent the State suggests that the
implied-consent and mandatory-blood-draw
provisions in the Transportation Code
categorically extinguish a DWI suspect’s right
to withdraw consent when some aggravating
circumstance is present, that suggestion
cannot be squared with the requirement that,
to be valid for Fourth Amendment purposes,
consent must be freely and voluntarily given
based on the totality of the circumstances, and
must not have been revoked or withdrawn at
the time of the search. In other words, implied
consent that has been withdrawn or revoked
by a suspect cannot serve as a substitute for
the free and voluntary consent that the Fourth
Amendment requires.
Id. at *11 (internal citations omitted); Lloyd v. State, No.
05–13–01004–CV, 2014 WL 7249747, at *3 (Tex.App.—
Dallas Dec. 22, 2014, no pet. h.). The record in this
instance clearly demonstrates that the appellee refused
consent. Accordingly, we reject this argument.
Sandlin, 2015 WL 294660, at *2.
5
Argument
I. The blood results should not have been suppressed
This Court should grant review because the court of appeals
decided an important question of state and federal law that is unsettled
and should be settled by this Court. See Tex. R. App. P. 66.3(b). That
question is whether warrantless blood draws conducted under the
conditions listed in § 724.012 are reasonable under the Fourth
Amendment. The other outstanding question, addressed in subsection B
below, is whether the federal and state exclusionary rules require
suppression when the warrantless blood draw occurred before McNeely.
A. Reasonable under the Fourth Amendment
Like numerous other cases, the issue in this case revolves around
whether a blood draw conducted pursuant to the implied consent and
mandatory blood draw provisions of Chapter 724 of the Transportation
Code is reasonable under the Fourth Amendment. Because this Court
has already granted review to decide this issue in numerous other
pending cases, review is also warranted in the instant case. See, e.g.,
Villarreal, No. PD-0306-14; Holidy v. State, No. PD-0622-14 (granted
Aug. 20, 2014); Reeder v. State, No. 0601-14 (granted Aug. 20, 2014);
6
State v. Smith, No. PD-1615-14 (granted Feb. 11, 2015); Cole v. State,
No. PD-0077-15 (granted Apr. 22, 2015).
B. Sanction of exclusion is not warranted
If an officer believed a person was driving a child around while
intoxicated and declined to provide a breath or blood sample, it would
have been objectively reasonable in June 2012 for an officer to require a
sample without a warrant. Not only that, § 724.012(b) mandated that
the officer do so. Tex. Transp. Code § 724.012(b). As Sandlin’s counsel
put it in this case, § 724.012(b) had not “come into question,” and it was
presumptively constitutional. RR 15; Karenev v. State, 281 S.W.3d 428,
434 (Tex. Crim. App. 2009) (“Statutes are presumed to be constitutional
until it is determined otherwise. The State and the trial court should
not be required to anticipate that a statute may later be held to be
unconstitutional.”).
If anything, it is the legislature and not the officer who is to blame
if statutory blood draws turn out to be unconstitutional. Under such
circumstances, the sanction of excluding the blood evidence will not
further the aim of an exclusionary rule—deterring unlawful police
conduct. Illinois v. Krull, 480 U.S. 340, 347 (1987). At a high price to
7
society, it would penalize officers without bringing about any greater
compliance with the laws on the books. See id. Still more, as the United
States Supreme Court recognized in Davis v. United States, it will have
a counter effect. Penalizing the blameless officer who follows the
mandate of the current law will only discourage conscientious officers
from doing their duty, where a controlling law specifically authorizes a
particular police practice. Davis v. United States, 131 S. Ct. 2419, 2429
(2011).
Because Texas officers face these same incentives and
disincentives, this Court should find that the Texas Exclusionary Rule,
like its federal counterpart, does not mechanistically require the harsh
sanction of exclusion in this circumstance. The statutory “good-faith”
exception to Texas’s Exclusionary Rule, Code of Criminal Procedure
Article 38.23(b), which exempts an officer’s good-faith reliance on a
warrant, is inapplicable here because no warrant was ever involved.
But other doctrines do apply. In order for evidence to be excluded under
Texas law, for example, the evidence must be “obtained in violation” of
a constitutional provision or statute. Tex. Code Crim. Proc. art. 38.23.
And evidence has been “obtained in violation” when that evidence is
8
arrived at by exploiting an illegality. State v. Mayorga, 901 S.W.2d 943,
946 (Tex. Crim. App. 1995); see also Wong Sun v. United States, 371
U.S. 471, 487-88 (1963); State v. Mazuca, 375 S.W.3d 294, 300 (Tex.
Crim. App. 2012). The timing of events matters. When the crime has
not yet occurred (as in Mayorga) or the police conduct not yet illegal, the
evidence is not “within the field of exploitation.” See Mayorga, 901
S.W.2d at 946 (quoting lower court decision in State v. Mayorga, 876
S.W.2d 176, 178 (Tex. App.—Dallas 1994)). Where no court had yet held
the officer’s conduct illegal, and where a presumptively constitutional
statute appeared to mandate the actions he undertook here, Officer
Smith can hardly be said to have exploited an illegality.
Because it is important to Texas law whether the sanction of
exclusion can be justified in these circumstances and because this Court
has already granted review of this issue in Cole v. State, No. PD-0077-
15, this Court should grant review in the instant case. This issue was
implicitly passed on by the trial court; even defense counsel
acknowledged that the officer’s actions were “understandable” at the
time he acted. RR 18. Consequently, this Court should remand to the
9
court of appeals to decide in the first instance whether the Texas
Exclusionary Rule requires suppression.
Alternatively, this Court should find for the reasons set out in the
State Prosecuting Attorney’s brief in Cole that suppression is not
warranted. See State Prosecuting Attorney’s Brief on the Merits, Cole v.
State, No. PD-0077-15 (filed June 4, 2015).
II. The court of appeals should not have given Villarreal the
weight of controlling authority
This Court should also grant review because the court of appeals’s
departure from the usual course of judicial proceedings warrants
intervention by this Court. See Tex. R. App. P. 66.3(f). Instead of
conducting its own analysis of the issue that the State presented in this
appeal, the court of appeals relied solely2 on a non-final opinion by this
Court in Villarreal.
In Yeager v. State, another court of appeals also relied on an
opinion of this Court that was still pending on rehearing. Yeager v.
Although the court’s decision also cites its published opinion in Lloyd v. State, that
2
decision relies exclusively on Villarreal as well. Lloyd v. State, 453 S.W.3d 544, 547
(Tex. App.—Dallas 2014, pet. ref ’d) (“With respect to the first argument, the court
of criminal appeals already considered and rejected this precise argument [in
Villarreal].”).
10
State, 727 S.W.2d 280, 281 n.1 (Tex. Crim. App. 1987). In that instance,
the Court of Criminal Appeals advised:
Parties appearing before this Court and the Courts of
Appeals should proceed with caution when relying on non-
final opinions. An opinion which is not final is not a part
of the jurisprudence of this State.
Yeager, 727 S.W.2d at 281 n.1. Here, the court of appeals relied on
Villarreal to the exclusion of any other analysis.
This is not to say that a court of appeals cannot find a non-final
opinion of this Court to be persuasive authority. Of course it may do so.
After all, such a decision had the support of a majority of the judges of
this Court for at least one period of time, and indeed, in many cases, an
opinion in which a motion for rehearing is pending may ultimately
carry the weight of authority when the opinion becomes final.
But the court of appeals in the instant case did not merely agree
with the reasoning in Villarreal. Instead, the court of appeals rejected
the State’s arguments because, in the court’s view, Villarreal required
that result. As the court of appeals explained in its opinion, Villarreal
had “specifically rejected” the State’s argument and “[a]ccordingly,” the
court of appeals rejected it. From the court of appeals’s treatment of
Villarreal, there appeared no other alternative.
11
Because the court of appeals ceded its authority to decide the
instant appeal based on an opinion of this Court that lacks the force of
law and thus could not dictate the result, this Court should intervene
and grant review.
12
Prayer for Relief
Wherefore, the State of Texas prays that this Court will grant the
petition and ultimately reverse the decision of the court of appeals.
Respectfully submitted,
Greg Willis
District Attorney
Collin County, Texas
John R. Rolater, Jr.
Chief of the Appellate Division
/s/ Emily Johnson-Liu
Emily Johnson-Liu
Assistant District Attorney
2100 Bloomdale Rd., Suite 200
State Bar No. 24032600
ejohnson-liu@co.collin.tx.us
(972) 548-4323
FAX (214) 491-4860
Certificate of Service
The State has e-served counsel for Lawrence Sandlin, the
Honorable Jerry Kelly, through the eFileTexas.gov filing system and
sent a copy to The Honorable Lisa McMinn, State Prosecuting Attorney,
on this, the 4th day of August 2015.
/s/ Emily Johnson-Liu
13
Certificate of Compliance
This petition for discretionary review complies with the word
limitations in Texas Rule of Appellate Procedure 9.4(i)(2). In reliance on
the word count of the computer program used to prepare this petition,
the undersigned attorney certifies that this document contains 2,046
words, exclusive of the sections exempted by Rule 9.4(i)(1).
/s/ Emily Johnson-Liu
Assistant District Attorney
14
APPENDIX
Opinion of the Court of Appeals,
Jan. 22, 2015
AFFIRMED; and Opinion Filed January 22, 2015.
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-14-00072-CR
THE STATE OF TEXAS, Appellant
V.
LAWRENCE CLARK SANDLIN, Appellee
On Appeal from the 416th Judicial District Court
Collin County, Texas
Trial Court Cause No. 416-82012-2012
MEMORANDUM OPINION
Before Justices Bridges, Lang, and Evans
Opinion by Justice Evans
The State of Texas appeals the trial court’s decision to grant appellee Lawrence Clark
Sandlin’s motion to suppress. In a single issue, the State contends that the mandatory blood
draw provision of Section 724.012(b) of the Texas Transportation Code is lawful because it
authorizes irrevocable consent in narrow circumstances. Finding no merit in the State’s
argument, we affirm the trial court’s order granting the motion to suppress.
BACKGROUND
On the evening of June 30, 2012, police officer Roger Smith noticed that a white Mini
Cooper began drifting out its lane and making unsafe lane changes. Officer Smith stopped the
car and noticed that Sandlin, the driver, had his eight-year old daughter in the car with him.
Sandlin admitted he had been consuming alcohol. Officer Smith conducted a breath test which
indicated the presence of alcohol in Sandlin’s system. Officer Smith also performed the field
sobriety tests on Sandlin which also indicated that he had been driving while intoxicated.
Sandlin was then arrested for driving while intoxicated with a passenger under fifteen years of
age. After taking him to the jail, Officer Smith requested that Sandlin provide a breath and blood
specimen and Sandlin refused. Officer Smith then informed Sandlin that pursuant to the Texas
Transportation Code, it was mandatory that Sandlin provide a sample. See TEX. TRANSP. CODE
ANN. § 724.012(b) (West 2011). A nurse then took a blood specimen from Sandlin at the jail.
Sandlin was indicted for the felony offense of DWI with a child passenger. Sandlin filed
a motion to suppress alleging that the warrantless, nonconsensual blood draw was a violation of
his Fourth Amendment rights under the United States Constitution. The trial court granted the
motion to suppress and the State filed this appeal. While this appeal was pending, the court of
criminal appeals issued its opinion in State v. Villarreal, No. PD-0306-14, 2014 WL 6734178
(Tex. Crim. App. Nov. 26, 2014), addressing involuntary blood draws taken under the authority
of the Texas Transportation Code.
ANALYSIS
In a single issue, the State claims that the trial court erred by granting Sandlin’s motion to
suppress. The State argues that the blood draw was lawful because the statutory scheme
establishes prospective, but irrevocable, consent in certain narrow circumstances. We disagree.
We apply a bifurcated standard of review of a trial court’s ruling on a motion to suppress
by giving almost total deference to the trial court’s determinations of fact and reviewing de novo
the trial court’s application of law. State v. McLain, 337 S.W.3d 268, 271 (Tex. Crim. App.
2011).
The Texas Court of Criminal Appeals recently addressed whether a warrantless,
nonconsensual testing of a DWI suspect’s blood violates the suspect’s Fourth Amendment rights.
Villarreal, 2014 WL 6734178. In Villarreal, the suspect was stopped for a traffic violation. Id.
–2–
at *1. As the suspect exhibited signs of intoxication, a DWI investigation was conducted. Id.
The suspect refused to perform standardized field sobriety tests and refused to provide a blood
specimen. Id. After the officer discovered that the suspect had been convicted of DWI on
several occasions, the suspect’s blood was drawn over his objection based on section 724.012(b)
of the Texas Transportation Code. Id. at *2. The suspect then moved to suppress the blood test
results and the trial court granted the motion. Id. On review to the court of criminal appeals, the
State argued that the court of appeals erred in holding that a warrantless blood draw conducted
pursuant to the provisions of the transportation code violates the Fourth Amendment. Id. at *6.
The court of criminal appeals rejected the State’s contention that the implied-consent and
mandatory blood draw provisions established a constitutionally valid basis for conducting a
nonconsensual search in the absence of a search warrant. Id.
In this case, the State argues that Sandlin gave implied consent to provide a breath or
blood specimen which was irrevocable under section 724.012(b) of Texas Transportation Code
because he had a child passenger in the vehicle with him. In Villarreal, however, the Texas
Court of Criminal Appeals specifically rejected this argument:
To the extent the State suggests that the implied-consent and mandatory-blood-
draw provisions in the Transportation Code categorically extinguish a DWI
suspect’s right to withdraw consent when some aggravating circumstance is
present, that suggestion cannot be squared with the requirement that, to be valid
for Fourth Amendment purposes, consent must be freely and voluntarily given
based on the totality of the circumstances, and must not have been revoked or
withdrawn at the time of the search. In other words, implied consent that has
been withdrawn or revoked by a suspect cannot serve as a substitute for the free
and voluntary consent that the Fourth Amendment requires.
Id. at *11 (internal citations omitted); Lloyd v. State, No. 05-13-01004-CV, 2014 WL 7249747,
at *3 (Tex. App.—Dallas Dec. 22, 2014, no pet. h.). The record in this instance clearly
demonstrates that the appellee refused consent. Accordingly, we reject this argument.
–3–
CONCLUSION
We resolve the State’s issue against it and affirm the trial court’s order granting the
motion to suppress.
/ David Evans/
DAVID EVANS
JUSTICE
Do Not Publish
TEX. R. APP. P. 47
140072F.U05
–4–
S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
THE STATE OF TEXAS, Appellant On Appeal from the 416th Judicial District
Court, Collin County, Texas
No. 05-14-00072-CR V. Trial Court Cause No. 416-82012-2012.
Opinion delivered by Justice Evans.
LAWRENCE CLARK SANDLIN, Appellee Justices Bridges and Lang participating.
Based on the Court’s opinion of this date, the order of the trial court granting the motion
to suppress is AFFIRMED.
Judgment entered this 22nd day of January, 2015.
–5–