{ "id": 9441255, "name": "STATE OF NORTH CAROLINA v. ELLIS WILLIAM FRAZIER", "name_abbreviation": "State v. Frazier", "decision_date": "2001-03-06", "docket_number": "No. COA00-232", "first_page": "361", "last_page": "371", "citations": [ { "type": "official", "cite": "142 N.C. App. 361" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "539 S.E.2d 625", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "631", "parenthetical": "\"an anonymous tip can form the basis of reasonable suspicion as long as there is sufficient indicia of reliability either from the tip alone or after police corroboration\"" } ], "opinion_index": 0 }, { "cite": "353 N.C. 200", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135935 ], "year": 2000, "pin_cites": [ { "page": "208", "parenthetical": "\"an anonymous tip can form the basis of reasonable suspicion as long as there is sufficient indicia of reliability either from the tip alone or after police corroboration\"" } ], "opinion_index": 0, "case_paths": [ "/nc/353/0200-01" ] }, { "cite": "529 U.S. 266", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9508406 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "269", "parenthetical": "\"[a]nonymous tips . . . are generally less reliable than tips from known informants and can form the basis for reasonable suspicion only if accompanied by specific indicia of reliability\"" }, { "page": "259", "parenthetical": "\"[a]nonymous tips . . . are generally less reliable than tips from known informants and can form the basis for reasonable suspicion only if accompanied by specific indicia of reliability\"" } ], "opinion_index": 0, "case_paths": [ "/us/529/0266-01" ] }, { "cite": "379 S.E.2d 255", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "259" } ], "opinion_index": 0 }, { "cite": "93 N.C. 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ELLIS WILLIAM FRAZIER" ], "opinions": [ { "text": "GREENE, Judge.\nEllis William Frazier (Defendant) appeals from judgments entered after a jury rendered verdicts finding him guilty of intentionally keeping or maintaining a dwelling used for the keeping and/or selling of a controlled substance and possession with intent to sell or deliver cocaine.\nDefendant\u2019s case was called for trial on 3 November 1999. At that time, Defendant\u2019s counsel, John Oates (Oates), informed the trial court Defendant wished to be formally arraigned. Prior to arraignment, Defendant stated he was \u201cphysically unable to stand trial\u201d because he had not spoken with his attorney concerning his case. Defendant was formally arraigned and given an opportunity to speak with Oates. After Defendant spoke with Oates, Oates stated he was ready to proceed and jury selection began on 3 November 1999. The State began presenting its evidence on 4 November 1999.\nThe State\u2019s evidence shows Selene Sloan (Sloan) entered the Roger\u2019s Motel (the Motel) in Cary on 26 January 1999 and requested to rent a room. Sloan told Barbara Rogers (Rogers), the owner of the Motel, she and her boyfriend, Defendant, were in the process of relocating to Cary and would stay at the Motel until they found an apartment. Sloan and Defendant were the only people staying in room 9 of the Motel (room 9) and neither appeared to work regular business hours. Both Defendant and Sloan were seen in room 9 and around the Motel frequently at noontime. Sloan and Defendant stayed at the Motel approximately six or seven weeks and \u201c[s]ometimes [Sloan] paid [the rent]. Sometimes a money order was dropped in. And on an occasion or two, [Defendant] paid [the rent].\u201d\nAt some point during the stay of Defendant and Sloan at the Motel, Rogers and her husband received an anonymous letter indicating drugs were being sold in room 9. Rogers immediately called the Cary Police Department and an investigator came to the Motel and spoke with Rogers and her husband. Rogers and her husband later spoke with Defendant and informed him of the letter. Defendant neither denied nor confirmed he was selling drugs.\nAt trial, Detective Tracy Barker (Barker), of the Cary Police Department, testified he spoke with Rogers and her husband on 17 March 1999. Barker decided he would do a \u201cknock and talk investigation,\u201d where he would \u201cgo up to [the] door, knock on [the] door, and ask the people in the . . . [motel] room ... if [he could] come in and talk with them.\u201d Sloan allowed Barker to enter her motel room. As Barker entered room 9, he noticed Defendant lying on the bed. Defendant proceeded to get off of the bed and walk toward the bathroom. Barker asked Defendant if he had a problem with Barker \u201ccoming in and talking with them.\u201d Defendant did not respond, but continued walking toward the bathroom. Barker repeated himself and Defendant told Barker he could come into the room. As Defendant continued walking away from Barker, Defendant looked back at Barker in what Barker felt was \u201ca suspicious sort of look.\u201d Barker asked Defendant to stop, however, Defendant continued walking and made a \u201clunge\u201d behind a wall and shut the bathroom door. Barker \u201chad an immediate feeling of fear . . . for [his] safety and the officers that were with [him].\u201d Barker forced the bathroom door open and found Defendant \u201cbetween the door and the tub .... He had his hands up in the ceiling tiles.\u201d Barker grabbed Defendant\u2019s arms, laid \u201chim on the bed and secured him\u201d and then secured Sloan.\nAfter Defendant and Sloan were secured by Barker, Barker retrieved a step ladder and went into the bathroom to search it. Barker found a sandwich-sized plastic bag containing five individually wrapped rocks of crack cocaine located in the bathroom ceiling tiles. Barker conducted a \u201ccursory search\u201d of room 9 for weapons or contraband. Barker and other officers confiscated: \u201ca homemade crack pipe\u201d; a \u201ccrisp $20 bill that was folded lengthwise in half\u201d; \u201ca number of pagers\u201d; two cellular phones; and a leather wallet containing $1,493.00 in cash found on the side of the bed Defendant had lay on.\nThe State asked Barker if Defendant made any other statements while in room 9. Oates objected and the trial court excused the jury. Oates stated his objection was based on Barker\u2019s report that Defendant made \u201ca statement saying ... there were no other drugs in the room.\u201d Oates contended Defendant was in custody and, thus, Barker\u2019s questioning of Defendant was a violation of Defendant\u2019s Miranda rights. Oates attempted to conduct a voir dire examination of Barker, but the trial court interrupted Oates. The trial court inquired if Oates was attempting to make a motion to suppress and Oates answered in the affirmative. The trial court informed Oates \u201c[N.C. Gen. Stat. \u00a7] 15A requires a written motion unless [Oates was] not aware that this evidence was in existence. And... assuming from [Oates\u2019] comments . . . [he] had the report prior to trial.\u201d Oates indicated he did have the report prior to trial and he had the opportunity to file a written motion to suppress. The State moved to deny the motion to suppress and the trial court denied Defendant\u2019s motion to suppress.\nBarker was permitted to testify Defendant advised Barker there were no other drugs in room 9. On cross-examination, Barker testified Sloan \u201cappeared to be living or at least staying in the room at the time [Barker] came into [room 9].\u201d\nOfficer Kenneth S. Quinlan (Quinlan) testified he went with Barker on 17 March 1999 because Barker \u201chad a safety concern [and] . . . wanted an additional officer to back him up.\u201d As Defendant walked toward the bathroom, Defendant was looking at Barker and Quinlan in an \u201cawkward\u201d manner and Quinlan became concerned for their safety.\nAt the close of the State\u2019s evidence, Defendant made motions to dismiss both charges for insufficiency of the evidence, however, the motions were denied. Defendant presented no evidence at trial.\nThe issues are whether: (I) the State presented substantial evidence Defendant kept or maintained a place used for the keeping and/or selling of a controlled substance; (II) the State presented substantial evidence Defendant possessed cocaine; and (III) Oates provided Defendant with ineffective assistance of counsel.\nI\nDefendant contends the trial court erred in failing to dismiss the charge of intentionally keeping or maintaining a dwelling used for the keeping and/or selling of a controlled substance because there was insufficient evidence Defendant kept or maintained room 9 for the purpose of keeping or selling a controlled substance. We disagree.\nA motion to dismiss must be denied if \u201cthere is substantial evidence (1) of each essential element of the offense charged and (2) that [the] defendant is the perpetrator of the offense.\u201d State v. Lynch, 327 N.C. 210, 215, 393 S.E.2d 811, 814 (1990). \u201cSubstantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.\u201d State v. Franklin, 327 N.C. 162, 171, 393 S.E.2d 781, 787 (1990). \u201cWhen ruling on a motion to dismiss, all of the evidence should be considered in the light most favorable to the State, and the State is entitled to all reasonable inferences which may be drawn from the evidence.\u201d State v. Davis, 130 N.C. App. 675, 679, 505 S.E.2d 138, 141 (1998).\nTo obtain a conviction for knowingly and intentionally maintaining a place used for keeping and/or selling controlled substances under N.C. Gen. Stat. \u00a7 90-108(a)(7), the State has the burden of proving the defendant: (1) knowingly or intentionally kept or maintained; (2) a building or other place; (3) being used for the keeping or selling of a controlled substance. N.C.G.S. \u00a7 90-108(a)(7) (1999); State v. Allen, 102 N.C. App. 598, 608, 403 S.E.2d 907, 913-14 (1991), rev\u2019d on other grounds, 332 N.C. 123, 418 S.E.2d 225 (1992).\nA\nKeep or maintain a place\nWhether a person \u201ckeep[s] or maintain[s]\u201d a place, within the meaning of N.C. Gen. Stat. \u00a7 90-108(a)(7), requires consideration of several factors, none of which are dispositive. See Allen, 102 N.C. App. at 608-09,403 S.E.2d at 913-14. Those factors include: occupancy of the property; payment of rent; possession over a duration of time; possession of a key used to enter or exit the property; and payment of utility or repair expenses. See id; see also State v. Rich, 87 N.C. App. 380, 384, 361 S.E.2d 321, 324 (1987); State v. Kelly, 120 N.C. App. 821, 826, 463 S.E.2d 812, 815 (1995).\nIn this case, Sloan told Rogers that both she and Defendant would stay in room 9. During the six or seven weeks Defendant stayed at the Motel, he sometimes paid the rent. Defendant did not work regular business hours and was seen in room 9 and around the Motel in the middle of the day. This evidence is \u201csuch relevant evidence as a reasonable mind might accept as adequate to support a conclusion\u201d Defendant kept or maintained room 9.\nB\nUsed for keeping and/or selling a controlled substance\nThe determination of whether a building or other place is used for keeping or selling a controlled substance \u201cwill depend on the totality of the circumstances.\u201d State v. Mitchell, 336 N.C. 22, 34, 442 S.E.2d 24, 30 (1994). Factors to be considered in determining whether a particular place is used to \u201ckeep or sell\u201d controlled substances include: a large amount of cash being found in the place; a defendant admitting to selling controlled substances; and the place containing numerous amounts of drug paraphernalia. See id.; see also State v. Bright, 78 N.C. App. 239, 240, 337 S.E.2d 87, 87-88 (1985), disc. review denied, 315 N.C. 591, 341 S.E.2d 31 (1986); Rich, 87 N.C. App. at 384, 361 S.E.2d at 322.\nIn this case, Rogers and her husband received an anonymous letter stating drugs were being sold in room 9. When Defendant was confronted with these allegations, he neither denied nor confirmed them. Defendant was found in the bathroom, with his hands in the ceiling tiles where five rocks of crack cocaine were later found. In addition, a homemade crack pipe, a leather wallet containing $1,493.00 in cash and a number of pagers were found in room 9. These circumstances, along with Defendant\u2019s suspicious behavior on the day of the arrest, \u201cis such relevant evidence as a reasonable mind might accept as adequate to support a conclusion\u201d room 9 was used for keeping or selling drugs. Accordingly, Defendant\u2019s motion to dismiss the charge of maintaining a dwelling used for the keeping and/or selling of a controlled substance was properly denied.\nII\nDefendant was charged with possession with the intent to sell or deliver cocaine in violation of N.C. Gen. Stat. \u00a7 90-95(a)(l). Under this statute the State has the burden of proving: (1) the defendant possessed the controlled substance; and (2) with the intent to sell or distribute it. State v. Carr, 122 N.C. App. 369, 372, 470 S.E.2d 70, 72-73 (1996).\nDefendant contends the trial court erred in failing to dismiss this charge because there is no evidence he possessed the drugs found in the dwelling. We disagree.\nPossession may be either actual or constructive. State v. Broome, 136 N.C. App. 82, 87, 523 S.E.2d 448, 452 (1999), disc. review denied, 351 N.C. 362, 543 S.E.2d 136 (2000). \u201cConstructive possession exists when a person,\u201d although not having actual possession of the controlled substance, \u201chas the intent and capability to maintain control and dominion over [the] controlled substance.\u201d State v. Neal, 109 N.C. App. 684, 686, 428 S.E.2d 287, 289 (1993). Constructive possession of drugs is often shown by evidence the defendant has exclusive possession of the property in which the drugs are located. State v. Alston, 91 N.C. App. 707, 710, 373 S.E.2d 306, 309 (1988). It can also be shown with evidence the defendant has nonexclusive possession of the property where the drugs are located; provided, there is other incriminating evidence connecting the defendant with the drugs. Id.\nIn this case, there is substantial evidence Defendant, along with Sloan, shared possession of the room where the drugs were located. Other incriminating evidence, connecting Defendant with the drugs, includes his \u201clunge\u201d into the bathroom and the placing of his hands into the bathroom ceiling, where the drugs were later found. This evidence is therefore sufficient to support the conclusion Defendant had constructive possession of the drugs in question. Accordingly, Defendant\u2019s motion to dismiss the charge of possession with intent to sell or deliver cocaine was properly denied.\nIll\nDefendant argues in his brief to this Court that Oates\u2019 actions amounted to ineffective assistance of counsel. Defendant cites Oates\u2019 failure to: (1) move to suppress the drugs seized from room 9; (2) move to suppress statements made by Defendant prior to trial; and (3) assert Defendant\u2019s right not to be tried during the same week of arraignment.\nA strong presumption exists that a counsel\u2019s conduct falls within the range of reasonable professional assistance. State v. Mason, 337 N.C. 165, 177-78, 446 S.E.2d 58, 65 (1994). In order to substantiate a claim for ineffective assistance of counsel, a defendant must show that \u201chis counsel\u2019s representation was deficient and that there is a reasonable possibility that, but for counsel\u2019s inadequate representation, there would have been a different result.\u201d State v. Piche, 102 N.C. App. 630, 638, 403 S.E.2d 559, 564 (1991). If this Court \u201ccan determine at the outset that there is no reasonable probability that in the absence of counsel\u2019s alleged errors the result of the proceeding would have been different,\u201d we do not determine if counsel\u2019s performance was actually deficient. State v. Braswell, 312 N.C. 553, 563, 324 S.E.2d 241, 249 (1985). A counsel\u2019s failure to object to evidence which is in fact admissible does not amount to deficient representation. See State v. Lee, 348 N.C. 474, 492-93, 501 S.E.2d 334, 346 (1998).\nA\nFailure to suppress evidence\nDefendant argues the warrantless search of room 9 violated his constitutional rights and, thus, his counsel\u2019s failure to move to suppress the drugs amounted to ineffective assistance of counsel. We disagree.\nA warrantless search may be conducted if \u201cprobable cause exists to search and the exigencies of the situation make search without a warrant necessary.\u201d State v. Mills, 104 N.C. App. 724, 730, 411 S.E.2d 193, 196 (1991). Probable cause to search for controlled substances is established if \u201ca reasonable person acting in good faith could reasonably believe that a search of the defendant would reveal the controlled substances sought which would aid in his conviction.\u201d Id. at 730, 411 S.E.2d at 196. This Court, in reviewing whether probable cause exists, may consider the following nonexclusive factors: the defendant\u2019s suspicious behavior; flight from the officer or the area; and the officer\u2019s knowledge of defendant\u2019s past criminal conduct. See id. at 729, 411 S.E.2d at 196 (factors to consider to determine if probable cause exists to arrest). In addition, an exigent circumstance is found to exist in the \u201cpresence of an emergency or dangerous situation,\u201d State v. Guevara, 349 N.C. 243, 250, 506 S.E.2d 711, 716 (1998), cert. denied, 526 U.S. 1133, 143 L. Ed. 2d 1013 (1999), and may include: a suspect\u2019s fleeing or seeking to escape, id.-, possible destruction of a controlled substance, see Mills, 104 N.C. App. at 731, 411 S.E.2d at 197; and \u201cthe degree of probable cause to believe the suspect committed the crime involved,\u201d State v. Allison, 298 N.C. 135, 141, 257 S.E.2d 417, 421 (1979).\nIn this case, the evidence prior to the search of room 9 shows: as the officers entered the room, Defendant proceeded to get off of the bed and walk away from the officers; Defendant did not respond to Barker\u2019s inquiry of whether or not Defendant had a problem with Barker coming into room 9 and talking with him and Sloan, until Barker asked Defendant a second time; and Defendant gave Barker \u201ca suspicious sort of look\u201d and then made a \u201clunge\u201d behind a wall and shut the bathroom door. This evidence establishes probable cause to search Defendant because a reasonable person, acting in good faith, could believe a search of Defendant would reveal the presence of a controlled substance. Likewise, exigent circumstances also existed in this case. Defendant tried to flee from the officers, there was a danger the controlled substance could be destroyed, and there was probable cause to believe Defendant committed a crime. Accordingly, probable cause and exigent circumstances existed sufficient to conduct a warrantless search of Defendant, and, thus, because the evidence was admissible, Oates\u2019 failure to move to suppress the evidence did not amount to deficient representation.\nB\nDefendant\u2019s statement\nDefendant argues his statement there were no other drugs in room 9 was made during a custodial interrogation in violation of his Miranda rights. We disagree.\nA defendant must be given Miranda warnings before he is subjected to custodial interrogation. State v. Lipford, 81 N.C. App. 464, 468, 344 S.E.2d 307, 310 (1986). \u201cSpontaneous statements made by an individual while in custody are admissible despite the absence of Miranda warnings.\u201d Id.\nIn this case, Defendant stated, after he had been secured and after the officers had conducted a search of the room, that there were no other drugs in room 9. There is no evidence from the record Defendant\u2019s statement was made in response to any question posed by the officers. Accordingly, Defendant\u2019s statement appeared to be a spontaneous statement, not made in response to the officers\u2019 prompting, and, thus, is admissible despite the absence of Miranda warnings. Because Defendant\u2019s statement is in fact admissible, Oates\u2019 failure to object to the admissibility of the statement does not amount to deficient representation.\nC\nArraignment\n\u201cWhen a defendant pleads not guilty at an arraignment^ ... he may not be tried without his consent in the week in which he is arraigned.\u201d N.C.G.S. \u00a7 15A-943(b) (1999). \u201c[I]t is a general rule that a defendant may waive the benefit of statutory or constitutional provisions by express consent, failure to assert [the benefit] in apt time, or by conduct inconsistent with a purpose to insist upon [the benefit].\u201d State v. Gaiten, 277 N.C. 236, 239, 176 S.E.2d 778, 781 (1970). If a defendant fails to assert the right guaranteed by N.C. Gen. Stat. \u00a7 15A-943(b) by seeking a continuance of his trial, \u201che waive[s] his statutory right not to be tried the week in which he was arraigned.\u201d State v. Styles, 93 N.C. App. 596, 602, 379 S.E.2d 255, 259 (1989).\nDefendant argues Oates\u2019 failure to move for a continuance in his case resulted in Defendant waiving his statutory right under section 15A-943(b), and, thus, amounted to ineffective assistance of counsel. Defendant contends additional time would have aided in his preparation for trial and \u201cwould have enabled counsel to competently advise [Defendant with regard to his options,\u201d including moving to suppress Defendant\u2019s statement and moving to suppress the controlled substance. We disagree. Defendant has not indicated to this Court in what manner he was unprepared for trial, how additional time would have aided in his preparation, or what options Oates failed to explain to Defendant. Absent some indication of how the failure to move for a continuance impacted Defendant\u2019s preparation at trial, there is no reasonable possibility there would have been a different result at trial. Likewise, because we have held in Parts III (A) and (B) of this opinion that Oates\u2019 failure to move to suppress the evidence seized from room 9 and to suppress Defendant\u2019s statement did not amount to deficient representation, there is no reasonable possibility, absent Oates\u2019 failure to request a continuance and then make motions to suppress, a different result would have been reached at trial.\nNo error.\nJudges TYSON and JOHN concur.\n. In considering whether evidence is present to create probable cause, \u201cnone of these factors alone would be sufficient to establish probable cause.\u201d Mills, 104 N.C. App. at 729, 411 S.E.2d at 196. These factors must be considered in their totality, \u201cbased upon the practical considerations of everyday life.\u201d Id.\n. The anonymous letter, standing alone, without some other \u201cindicia\u201d of reliability or form of corroboration, is not a sufficient basis to establish probable cause in this case. See Florida v. J.L., 529 U.S. 266, 269, 146 L. Ed. 2d 254, 259 (2000) (\u201c[a]nonymous tips . . . are generally less reliable than tips from known informants and can form the basis for reasonable suspicion only if accompanied by specific indicia of reliability\u201d); see also State v. Hughes, 353 N.C. 200, 208, 539 S.E.2d 625, 631 (2000) (\u201can anonymous tip can form the basis of reasonable suspicion as long as there is sufficient indicia of reliability either from the tip alone or after police corroboration\u201d).\n. Because the State concedes in its brief to this Court Defendant was in custody for purposes of Miranda, we need only address whether Defendant\u2019s statement was made as the result of an \u201cinterrogation.\u201d", "type": "majority", "author": "GREENE, Judge." } ], "attorneys": [ "Attorney General Michael F. Easley, by Special Deputy Attorney General W. Dale Talbert, for the State.", "Lig\u00f3n & Hinton, by Lemuel W. Hinton, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. ELLIS WILLIAM FRAZIER\nNo. COA00-232\n(Filed 6 March 2001)\n1. Drugs\u2014 keeping dwelling for selling drugs \u2014 sufficiency of evidence\nThe trial court did not err by not dismissing a charge of intentionally keeping or maintaining a dwelling used for the keeping and/or selling of a controlled substance for insufficient evidence where Sloan (who identified herself as defendant\u2019s girlfriend) told Rogers (the owner of a motel) that she and defendant would stay in room 9; defendant sometimes paid the rent during the weeks they were there; defendant did not work regular business hours and was seen in the room around the middle of the day; Rogers and her husband received an anonymous letter stating that drugs were being sold in the room; defendant neither confirmed nor denied the allegations when confronted; defendant was found by officers in the bathroom, with his hands in the ceiling tiles where five rocks of crack cocaine were later found; a homemade crack pipe, a leather wallet containing $1,493 in cash, and a number of pagers were found in room 9; and defendant acted suspiciously on the day of the arrest.\n2. Drugs\u2014 constructive possession \u2014 evidence sufficient\nThe trial court did not err by not dismissing a charge of possession of crack cocaine with intent to sell and deliver where the evidence was sufficient to support constructive possession. There was substantial evidence that defendant and his girlfriend shared possession of the motel room where the drugs were located and other incriminating evidence included defendant\u2019s lunge into the bathroom when officers entered the motel room and defendant placing his hands into the bathroom ceiling where the drugs were later found.\n3. Constitutional Law\u2014 effective assistance of counsel \u2014 failure to object or move for continuance\nThe actions of defense counsel in a prosecution for intentionally keeping or maintaining a dwelling used for the keeping and/or selling of a controlled substance did not amount to ineffective assistance of counsel where defendant pointed to his counsel\u2019s failure to suppress drugs seized in a warrantless search, but probable cause and exigent circumstances existed and the evidence was admissible; defense counsel\u2019s failure to object to the admissibility of defendant\u2019s statement concerning other drugs in his room did not amount to deficient representation because the statement was spontaneous and admissible despite the absence of Miranda warnings; and there was no indication of how the failure to move for a continuance impacted preparation for trial where defendant was arraigned and tried in the same week.\nAppeal by defendant from judgments dated 4 November 1999 by Judge Gregory A. Weeks in Wake County Superior Court. Heard in the Court of Appeals 30 January 2001.\nAttorney General Michael F. Easley, by Special Deputy Attorney General W. Dale Talbert, for the State.\nLig\u00f3n & Hinton, by Lemuel W. Hinton, for defendant-appellant." }, "file_name": "0361-01", "first_page_order": 391, "last_page_order": 401 }