                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-3048-18T2

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

BRYAN B. CALCOTT, a/k/a
BRYAN C. CALCOTT,
BRYAN BRENT CALCOTT,
BRYAN CALCOTT, BRENT
BRYAN CALCOTT, B.
CALCOTT, GINO PIRRI, and
WESLEY ROBERT VOLIKAS,

          Defendant-Appellant.


                   Submitted January 30, 2020 – Decided June 15, 2020

                   Before Judges Alvarez and Suter.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Bergen County, Indictment No. 13-04-0556.

                   Chiesa Shahinian & Giantomasi PC, attorneys for
                   appellant (Lee D. Vartan and Brigitte M. Gladis, on the
                   briefs).
            Mark Musella, Bergen County Prosecutor, attorney for
            respondent (William P. Miller, Assistant Prosecutor, of
            counsel and on the brief; Catherine A. Foddai, Legal
            Assistant, on the brief).

PER CURIAM

      Following the denial of his motion to suppress evidence seized in a

warrantless search, defendant Bryan B. Calcott entered a guilty plea to first-

degree possession of a controlled dangerous substance (marijuana) with the

intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(10)(a).

Pursuant to the negotiated plea agreement, the second count of the indictment,

charging him with fourth-degree possession of more than fifty grams of

marijuana, N.J.S.A. 2C:35-10(a)(3), was dismissed.      On February 8, 2019,

defendant was sentenced as a second-degree1 offender—not a first-degree

offender—to seven and one-half years flat. Appropriate fines and penalties were

also imposed. Defendant now appeals denial of his suppression motion as well

as the sentence. Finding no basis to disturb the Law Division judge's factual

findings or legal conclusions, we affirm.




1
  The judgment of conviction does not appear to indicate that defendant was
sentenced as a second-degree offender to the seven and one-half years
imprisonment.


                                                                       A-3048-18T2
                                       2
      The following facts were established in the suppression hearing, in the

main through the testimony of Port Authority Police Detective Sergeant Gabriel

Scudese. On December 12, 2012, 2 defendant boarded a private jet, which had

been chartered for a group of four golfers at a cost of $25,000. He was the lone

passenger, and carried with him two leather briefcases and two rectangular

containers, one three by four feet, the other slightly smaller. When the pilot

spoke to him before departure from the San Diego airport, defendant introduced

himself as "Bryan," but then used the name "Chris." He showed the pilot a

photocopy of a driver's license he claimed was his, in the name of "Christopher

Walkup." Defendant also told him he was carrying electronic equipment in the

containers.

      The pilot contacted the Drug Enforcement Administration (DEA)

regarding his suspicion defendant was transporting contraband. The plane was

traveling to Teterboro Airport, thus the California-based DEA agent relayed the

information to New Jersey DEA Special Agent Kevin O'Grady, who in turn

reached out to the Port Authority Police. The plane arrived in New Jersey at

approximately 9:10 p.m. Defendant took a shuttle from the plane to the terminal ,


2
  After the seizure at issue, defendant was permitted to leave—the authorities
were unable to locate him until August 27, 2015. He was found living in
Colorado under an assumed name.
                                                                         A-3048-18T2
                                       3
where Scudese and DEA agents boarded the bus and asked him for

identification. Defendant's arm was shaking so badly he could not retrieve his

wallet until after four attempts. He seemed extremely nervous. Defendant

showed the officers a California driver's license in his name.

      When Scudese asked defendant for permission to search the containers,

he refused. He claimed he worked for a hedge fund called "Faith Water Capital"

and was transporting "prototypes" to a client in New York City. He also claimed

he signed a non-disclosure agreement with his employer that meant he could not

open the boxes without his employer Christopher Walkup's express permission.

Defendant produced no verification of his narrative, such as a business card, and

said he had only been working for the hedge fund for three months. Scudese

asked him to contact his employer, which defendant was unable to do. Scudese

checked and could not locate a business by the name defendant gave, nor any

business entity at that address.

      Defendant accused Scudese and the others of being DEA agents, although

none of the officers had identified themselves as working for the DEA. He told

them the DEA had arrested him in the past for conspiracy to distribute cocaine,

and that since then the DEA had investigated and harassed him. Defendant

became upset and began to raise his voice. When asked by the officers why he


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                                        4
thought they were looking for drugs, defendant responded "[w]hat else would

you be looking for?"

      Defendant asked if he was under arrest, and the officers told him he was

free to go, but the containers would be subjected to a "sniff" by a canine unit.

Scudese told defendant if the sniff proved negative, he would be free to leave

with the containers. Defendant did not want to wait.

      When asked if he was not concerned about abandoning boxes containing

electronics prototypes, defendant told Scudese that he would let "the lawyers

deal with it." He left the terminal at approximately 9:30 p.m., some twenty

minutes after he disembarked from the plane. He was driven away by a vehicle

that had been waiting for him.      After defendant left, Scudese coordinated

surveillance. He was driven into Manhattan.

      Once he had arranged for defendant to be followed, Scudese contacted the

Port Authority Canine Unit, only to find it was not available. He next called the

Bergen County Police, and at approximately 9:55 p.m., confirmed that a canine

unit could respond. The dog and handler arrived at approximately 10:29 p.m.,

and within minutes the dog alerted to the presence of narcotics. A search

warrant was thereafter obtained and the containers opened.       109 pounds of

marijuana were found inside.


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                                       5
      The judge who denied the motion to suppress concluded that the

"encounter with Calcott began as a field inquiry" when the officers boarded the

shuttle bus. The matter became an investigatory detention when defendant

displayed signs of extreme nervousness, had significant difficulty producing his

identification, and explained his refusal to open the containers for inherently

suspect reasons that could not be corroborated. Additionally, he accused the

officers of being DEA agents looking for drugs.

      The judge found Scudese to be credible and highly experienced, and held

the officers had a reasonable and articulable suspicion that defendant was

engaged in criminal activity. He phrased the issue for decision to be whether

the length of "the investigatory detention was unnecessarily prolonged such that

it became a de facto arrest that was unconstitutional." Noting that defendant

was not handcuffed, and was permitted to leave after approximately fifteen

minutes, the judge found it was constitutional.

      The judge similarly found the "continued temporary detention" of the

containers to also be constitutionally permissible under the authority of United

States v. Place, 462 U.S. 696 (1983). Reasonable suspicion was necessary to

trigger the use of a canine, and such suspicion existed. The judge distinguished

his decision from Place because it would have been premature for police to


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                                       6
request the services of a canine unit before investigating the tip upon defendant's

arrival in Teterboro. This defendant, unlike the defendant in Place, was offered

the option of remaining with the containers at the terminal until a canine unit

could be located. He was allowed to take his leather briefcases, and made the

choice to leave the containers behind. The containers were in police custody

essentially from 9:15, when the officers boarded the shuttle bus, until 10:35,

when the dog alerted to the presence of narcotics.

      The judge opined the police diligently took all steps necessary to promptly

conduct the canine sniff with the least inconvenience to defendant, who was

permitted to go on his way. Thus, the extent of the delay was minimal in light

of probable cause to at least search.

      On appeal, defendant raises the following points of error:

            POINT I
            STANDARD OF REVIEW.

            POINT II
            THE APRIL 27, 2018 ORDER SHOULD BE
            REVERSED   AND   THE   JUDGMENT   OF
            CONVICTION   VACATED   BECAUSE   THE
            SUPERIOR COURT IGNORED THE SUPREME
            COURT'S DECISION IN UNITED STATES V.
            PLACE.

            POINT III
            THE APRIL 27, 2018 ORDER SHOULD BE
            REVERSED  AND    THE  JUDGMENT  OF

                                                                           A-3048-18T2
                                        7
            CONVICTION   VACATED   BECAUSE    THE
            SUPERIOR COURT FOUND THAT THERE WAS
            PROBABLE CAUSE TO SEARCH MR. CALCOTT'S
            LUGGAGE WHEN THERE WAS NOT.

                                         I.

      "Appellate courts reviewing a grant or denial of a motion to suppress must

uphold the factual findings underlying the trial court's decision so long as those

findings are supported by sufficient credible evidence in the record." State v.

Gamble, 218 N.J. 412, 424 (2014) (citing State v. Elders, 192 N.J. 224, 243

(2007)). Deference should be given to the trial court's findings. Elders, 192

N.J. at 244 (quoting State v. Johnson, 42 N.J. 146, 161 (1964)). An appellate

court may reverse a trial court's factual findings only if they "are so clearly

mistaken 'that the interests of justice demand intervention and correction.'" Ibid.

      Deference is not given to "[a] trial court's interpretation of the law" or "the

consequences that flow from established facts." Gamble, 218 N.J. at 425.

"Therefore, a trial court's legal conclusions are reviewed de novo." Ibid.; see

also State v. Gandhi, 201 N.J. 161, 176 (2010).

       When the facts of a case are not in dispute, the only issue to be decided

is whether the trial court properly concluded that the State did or did not meet

its "burden in proving the constitutionality of the warrantless search." State v.

Edmonds, 211 N.J. 117, 128-29 (2012).             The State must prove "by a

                                                                             A-3048-18T2
                                         8
preponderance of the evidence that there was no constitutional violation." State

v. Wilson, 178 N.J. 7, 13 (2003) (citing State v. Whittington, 142 N.J. Super.

45, 51-52 (App. Div. 1976)).

                                      II.

      Defendant's first point asserts the judge misapplied the holding in Place.

We do not agree. Facilitating a dog sniff by holding luggage for an extended

period of time is a seizure. Place, 462 U.S. at 707-10. In this case, however,

the timeframe was simply not excessive and probable cause existed.

      Some additional principles warrant restatement. A canine sniff itself is

not a search. See id. at 707. The New Jersey Supreme Court has said officers

must have reasonable and articulable suspicion to hold a suspect beyond the time

necessary for a routine traffic stop. State v. Dunbar, 229 N.J. 521, 540 (2017).

A three and one-half hour detention at a state police barracks of a vehicle and

its occupants while awaiting a canine team has been found to be excessive and

unreasonable. State v. Dickey, 152 N.J. 468, 479 (1998).

      Once these officers had a reasonable and articulable suspicion to subject

defendant's luggage to a canine sniff, defendant was not even detained. Unlike

Place, it would have been easy for defendant to return to the Teterboro Airport

to recover his luggage. The delay between stop and sniff was slightly over an


                                                                        A-3048-18T2
                                       9
hour, not unreasonable since the officers allowed defendant to go on his way

after a few minutes. Defendant was not under arrest. He knew the containers

were going to be checked by a drug detection dog and chose to leave rather than

remain.

      In Place, the officers at the defendant's departure point had obtained his

consent to search, but allowed him to leave because otherwise he would have

missed his plane connection. Place, 462 U.S. at 698. Once he arrived in New

York, he was again allowed to leave, but the agents took his bags from the

LaGuardia Airport to Kennedy Airport, and the detention of his luggage

exceeded ninety minutes. Id. at 699. The Court concluded that the authorities

had ample time to arrange for the canine unit after the defendant left Miami and

did not do so, exacerbated by the officers' failure to let Place know where the

luggage was being taken, and the steps he could take to recover them if the

investigation uncovered nothing illegal. Id. at 709-10.

      Scudese had nothing but triple hearsay to act upon, so his decision not to

contact a canine unit to check the luggage immediately once defendant arrived

was a reasonable effort at husbanding scant resources.




                                                                        A-3048-18T2
                                      10
                                       III.

      Probable cause is more than a mere suspicion, but less than evidence

necessary to convict. See State v. Basil, 202 N.J. 570, 585 (2010). Defendant's

responses, demeanor, and conduct gave rise to probable cause, thus the officers

were justified in at least holding the luggage. At that juncture, they had a well-

grounded suspicion that the boxes contained contraband. See State v. Chippero,

201 N.J. 14, 28 (2009). They had probable cause to search, and the timeframe

the luggage was detained was therefore reasonable.

      The totality of the circumstances established that defendant was

transporting contraband. The flight was booked for four, yet only one passenger

appeared. His inconsistent volunteered statements to the pilot regarding his

identity, his extreme nervousness, his possession of a driver's license in a name

different than the photocopy he showed the pilot, his fanciful explanation for

the contents of the boxes, his identification of an employer which could not be

corroborated, and his accusation that the officers were DEA agents who were

continuing to harass him are damning circumstances. The argument that these

factors did not constitute probable cause in light of the totality of the

circumstances has no merit. See State v. Gibson, 218 N.J. 277, 293 (2014).

      Affirmed.


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                                       11
