STATE OF NEW JERSEY VS. JOSE A. CORREA (14-12-0187, UNION COUNTY AND STATEWIDE) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE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-5553-16T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JOSE A. CORREA,
a/k/a ALBERTO MORALES,
DAVID SANCHEZ,
JOSE PEPE,
JOSE A. CORRERA,
JOSE M. CORREA, and
JOSE MORALES,
Defendant-Appellant.
_______________________________
Submitted December 12, 2018 – Decided December 28, 2018
Before Judges Nugent and Mawla.
On appeal from Superior Court of New Jersey, Law
Division, Union County, Indictment No. 14-12-0187.
Lustberg Law Offices, LLC, attorneys for appellant
(Adam M. Lustberg, of counsel and on the brief;
Edward J. Mullins, III, on the brief).
Gurbir S. Grewal, Attorney General, attorney for
respondent (Arielle E. Katz, Deputy Attorney General,
of counsel and on the brief).
PER CURIAM
Defendant Jose Correa appeals from a July 21, 2017 judgment of
conviction for first-degree possession of a controlled dangerous substance
(CDS) with intent to distribute. He challenges various pre-trial determinations
relating to the denial of a motion to suppress and a motion to reveal the identity
of a confidential informant (CI). We affirm.
The following facts are taken from the record. In February 2014,
Detective Hugo Ribeiro, of the New Jersey State Police, met with a CI regarding
information about narcotic sales occurring in Elizabeth. The CI advised there
was a Hispanic male, approximately 5'6", 220 pounds, and forty years old,
distributing cocaine and heroin under the name of "Jose," or "Hov," from his
apartment. This man was later identified as defendant.
Ribeiro met with the CI to arrange for a controlled purchase of drugs from
defendant. The CI was searched to confirm he did not possess any drugs and
was then provided with funds to purchase drugs from defendant. Detectives
observed the CI use a telephone to call defendant and ask if he had cocaine for
sale. Defendant responded he had several kilos of heroin and was awaiting an
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additional delivery of cocaine. Defendant told the CI to come to his apartment.
Detectives maintained visual surveillance as the CI traveled to defendant's
residence to make the purchase.
Defendant was observed exiting the residence to meet with the CI, then
re-entering it. After the purchase, the CI returned to meet with detectives at a
separate location. There, the CI informed detectives defendant had sold him
cocaine in exchange for the funds provided by the detectives.
The aforementioned information was recited in Ribeiro's affidavit of
application for a search warrant of defendant's residence. The search warrant
was authorized and executed the same day. When detectives entered the
residence, defendant ran to the rear of the apartment and began flushing
suspected drugs down the toilet. A search of the home yielded the following:
 Storage room: four boxes of glassine envelopes stamped "Frito Lays,"
plastic wrap, a porcelain plate with white residue, scotch tape,
toothbrushes, measuring spoons and rubber bands, a blender, plastic zip
lock bags with white residue, two sifters, four coffee grinders with white
residue, a digital scale, a vacuum sealer, and one box of ear loop masks.
 Garage: twelve clear plastic bags containing cocaine (approximately 825
grams), a press, a High Efficiency Particulate Air (HEPA) mask, a
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blender, four aluminum trays with white powder residue, a black leather
bag containing various metal components for presses, and two vacuum
sealers.
 Master bedroom: ten clear plastic bags containing heroin (10.145 oz.), an
unlabeled prescription bottle containing sixty oxycodone tablets, an
unlabeled prescription bottle containing ninety-four oxycodone tablets,
multiple stamps for marking heroin envelopes, a computer tower
connected to several security cameras on the premises, three security
cameras, various bank documents, and $14,540.
Defendant was subsequently arrested and indicted on ten drug-related
offenses. He filed a motion to suppress the evidence from the search and to
compel the State to reveal the identity of the CI. This motion and a subsequent
motion for reconsideration were denied. Separately, defendant filed a motion
seeking a hearing to challenge the probable cause basis for the search warrant,
which was also denied.
In January 2017, defendant entered a guilty plea to first-degree possession
of heroin with intent to distribute, N.J.S.A. 2C:35-5(a)(1), (b)(1). Defendant
was sentenced, in accordance with the plea agreement, to eleven years
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imprisonment, with a five-year period of parole ineligibility. This appeal
followed.
Defendant raises the following points on appeal:
POINT I
THE TRIAL JUDGE ERRONEOUSLY FOUND
THAT THE INFORMATION CONTAINED IN
DETECTIVE RIBEIRO'S WARRANT AFFIDAVIT
AMOUNTED TO PROBABLE CAUSE; THE
MOTION TO SUPPRESS SHOULD HAVE BEEN
GRANTED.
POINT II
IN THE ALTERNATIVE, BECAUSE OF A
MATERIAL OMISSION IN THE APPLICATION
FOR THE WARRANT, DEFENDANT IS ENTITLED
TO A HEARING PURSUANT TO [FRANKS V.
DELAWARE.1]
POINT III
THE JUDGE'S REFUSAL TO REVEAL THE
IDENTITY OF THE C.I. WAS ERRONEOUS AND
UNFAIRLY LIMITED DEFENDANT'S ABILITY TO
CHALLENGE THE LEGALITY OF THE SEARCH
WARRANT.
1
438 U.S. 154 (1978).
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I.
Review of a warrant's validity "is guided by the flexible nature of probable
cause and by the deference shown to issuing courts that apply that doctrine."
State v. Sullivan, 169 N.J. 204, 217 (2001). Warrant applications
should be read sensibly rather than hypercritically and
should be deemed legally sufficient so long as they
contain [] factual assertions which would lead a prudent
[person] to believe that a crime [has] been committed
and that evidence . . . of the crime [is] at the place
sought to be searched.
[Ibid. (alterations in original) (quoting State v. Laws,
50 N.J. 159, 173 (1967)).]
A reviewing judge should pay "substantial deference" to the discretionary
determination of the judge who issued the warrant. State v. Hemenway, 454
N.J. Super. 303, 322 (App. Div. 2018). "We are bound to uphold the factual
findings made by the Criminal Part judge in support of his ruling denying
defendant's motion to suppress, provided they are 'supported by sufficient
credible evidence in the record.'" Ibid. (quoting State v. Gamble, 218 N.J. 412,
424 (2014)). "Thus, we can disturb or reject the judge's findings of fact 'only if
they are so clearly mistaken that the interests of justice demand intervention and
correction.'" Ibid. (quoting State v. Elders, 192 N.J. 224, 244 (2007)).
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Defendant argues Ribeiro's affidavit was entirely dependent upon the
credibility of the CI, whose reliability police failed to substantiate. Thus,
defendant asserts there was no probable cause to issue the warrant. We disagree.
"The standards for determining probable cause to arrest and probable
cause to search are identical." State v. Moore, 181 N.J. 40, 45 (2004) (citing
State v. Smith, 155 N.J. 83, 92 (1998)). "The application for a warrant must
satisfy the issuing authority 'that there is probable cause to believe that a crime
has been committed, or is being committed, at a specific location or that
evidence of a crime is at the place sought to be searched.'" State v. Boone, 232
N.J. 417, 426 (2017) (emphasis in original) (quoting State v. Jones, 179 N.J.
377, 388 (2004)). "Probable cause exists when, considering 'the totality of the
circumstances,' a person of 'reasonable caution' would be justified in believing
that evidence of a crime exists in a certain location. State v. Smith, 212 N.J.
365, 388 (2012) (quoting Schneider v. Simonini, 163 N.J. 336, 361 (2000)).
"Information related by [a CI] may constitute a basis for probable cause."
Smith, 155 N.J. at 92. "Such information, though hearsay, may provide a
sufficient basis for probable cause, 'so long as a substantial basis for crediting
the hearsay is presented.'" Ibid. (quoting State v. Novembrino, 105 N.J. 95, 111
(1987)).
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The Supreme Court has adopted a two-prong test to determine the
sufficiency of an informant's tip. "First, the tip must include information that
apprises the magistrate of the basis for the informant's allegations (the 'basis-of-
knowledge' prong); and, second, the affiant must inform the magistrate of the
basis for his reliance on the informant's credibility (the 'veracity' prong)."
Novembrino, 105 N.J. at 111-12 (citing Illinois v. Gates, 462 U.S. 213, 267
(1983)).
The "basis-of-knowledge" prong requires a fact sensitive analysis and
consideration of the totality of the circumstances, including: controlled drug
purchases, positive test results of narcotics obtained in a controlled purchase,
records corroborating a CI's account of the location of drug activity, the
experience of the officers in drug investigations, and the suspect's criminal
record. See Jones, 179 N.J. at 390-91.
As to the second prong, a CI's veracity "may be satisfied by demonstrating
that the informant has proven reliable in the past, such as providing dependable
information in previous police investigations." State v. Keyes, 184 N.J. 541,
555 (2005) (citing Sullivan, 169 N.J. at 213). "Importantly, '[a] deficiency in
one of those factors may be compensated for, in determining the overall
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reliability of a tip, by a strong showing as to the other, or by some other indicia
of reliability.'" Ibid. (quoting State v. Zutic, 155 N.J. 103, 110–11 (1998)).
Notably, in Keyes, the Court noted a "controlled [drug] buy is [] central
to our analysis whether the corroborating facts presented in the police affidavit
adequately support the confidential informant's veracity and basis of
knowledge." Id. at 559. "[A]though no one corroborating fact is outcome
determinative, a successful controlled drug buy is generally very persuasive
evidence." Ibid. (citing Sullivan, 169 N.J. at 217). "When coupled with at least
one additional corroborating circumstance, a controlled buy typically suffices to
demonstrate that the police, under the totality of the circumstances, had probable
cause." Ibid. (citing Jones, 179 N.J. at 392).
In Keyes, the Court noted the following corroborating evidence:
The substance obtained during the controlled buy field-
tested positive for cocaine. A criminal history check of
[defendant] revealed that he had four felony
convictions, including convictions for manufacturing
and distributing drugs. The police routinely received
complaints from area residents about the constant drug
activity [at his residence]. Moreover, the police
observed known drug users entering an apartment on
the west side of the [residence] and exiting shortly
after. The police have detected lookouts in the housing
project that alert drug dealers when police approach the
area. In addition, the affiant has extensive experience
and education in drug-related activities. Beyond
peradventure, the facts in this appeal, considered
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collectively, constitute more corroboration than is
present in the typical search and seizure case. That
finding reinforces both the informant's veracity and his
basis of knowledge and leads us to the conclusion that
probable cause existed in the totality of these
circumstances.
[Ibid. (emphasis added).]
The facts here are analogous to Keyes. As we noted, following the tip
provided by the CI, detectives maintained constant visual surveillance on
defendant as he was observed exiting his residence to meet with the CI and
provided the CI with cocaine in exchange for the funds provided by police.
These observations were all noted in Ribeiro's affidavit, which also set forth
defendant's criminal history, including prior convictions for distribution of CDS.
Therefore, the controlled drug buy, and defendant's criminal history, satisfied
the basis-of-knowledge prong of the two-part test.
Furthermore, we reject defendant's claims the CI was unreliable because
police failed to indicate whether they had previously utilized the CI. We also
reject the assertion the CI was unreliable because the substance defendant gave
him had not been field-tested to confirm it was cocaine. "[P]ast instances of
reliability do not conclusively establish an informant's reliability[]" and a
deficiency in any of the factors establishing probable cause may be compensated
by other strong showings of reliability, namely, by evidence of the controlled
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drug buy. Id. at 555 (quoting Smith, 155 N.J. at 94). Here, there was much
more evidence to corroborate the CI's reliability than merely the CI's history and
the identity of the substance purchased from defendant. The CI's description of
defendant, his residence, and the nature of the product sold by defendant were
proven to be truthful. Moreover, detectives overheard the entire transaction in
which defendant offered to sell the CI cocaine and stated he was expecting a
shipment of more cocaine.
For these reasons, there was probable cause to issue the search warrant.
The motion judge's denial of defendant's motion to suppress the evidence from
the search was not clearly mistaken.
II.
"When reviewing a claim with respect to an issue of suppression, a
reviewing court must accept the factual findings made by the trial court in
analyzing the question, provided those factual findings are 'supported by
sufficient credible evidence in the record.'" Smith, 212 N.J. at 387 (citing State
v. Handy, 206 N.J. 39, 44 (2011)). "In considering the legal conclusions to be
drawn from those facts, our review is de novo." Ibid.Defendant argues he was wrongfully denied a Franks hearing because
there was a material dispute regarding the facts in Ribeiro's affidavit.
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Specifically, defendant points to the affidavit's omission of a statement made by
the CI to detectives, indicating there were "numerous weapons" at defendant's
residence. Defendant argues this omission entitles him to a hearing to determine
why this information was concealed.
The Supreme Court has held "that New Jersey courts, in entertaining
veracity challenges, need go no further than is required as a matter of Federal
Constitutional law by [Franks][.]" State v. Howery, 80 N.J. 563, 568 (1979)
(citing Franks v. Delaware, 438 U.S. 154 (1978)).
The core issue presented in the context of a challenge
to an affidavit, where the challenger alleges the
affidavit is fatally inaccurate by reason of omission, is
whether the information omitted from the affidavit is
material. The test for materiality is whether inclusion
of the omitted information would defeat a finding of
probable cause; it is not . . . whether a reviewing
magistrate would want to know the information.
[Smith, 212 N.J. at 399 (citations omitted).]
In Smith, the defendant contested an affidavit containing a statement by a
witness identifying him as the shooter in murder. Ibid. The defendant argued
the affidavit omitted statements previously made by the witness to police, thus,
rendering it invalid. Ibid. The Court concluded the omission did not defeat a
finding of probable cause and stated:
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The fact that [the witness] may have provided earlier
statements to [the detective], in addition to the
information [the detective] included ultimately in his
affidavit is not, by itself, sufficient to defeat a
conclusion of probable cause. Rather, [the witness']
omitted statements must be inserted into the affidavit
[the detective] prepared and submitted and an
assessment must be made, whether, in that expanded
format, the affidavit established probable cause. That
assessment, moreover, must take into account the
totality of the circumstances[.]
[Id. at 399-400.]
Here, the omission of the CI's statement regarding the weapons in
defendant's home would not defeat probable cause. Inserting the omitted
statement into Ribeiro's affidavit would not have contradicted defendant's
statement that he possessed cocaine for sale, or the police observation of the
drug transaction.
III.
Lastly, defendant contends the motion judge's denial of a motion to reveal
the identity of the CI was erroneous and unfairly limited defendant's ability to
challenge the legality of the search warrant. Since the judge's decision regarding
the identity of the CI turns upon an evidential privilege, we review the
determination for an abuse of discretion. State v. Sessoms, 413 N.J. Super. 338,
342 (App. Div. 2010).
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The purpose of the [confidential informant]
privilege is to encourage and secure a flow of vital
information which can be had only upon a confidential
basis. Recognizing the obligation of citizens to
communicate their knowledge of criminal offenses to
law enforcement officers the privilege encourages the
citizens to perform this obligation by preserving their
anonymity.
State v. Roundtree, 118 N.J. Super. 22, 30 (App. Div.
1971).2
Furthermore,
[a] witness has a privilege to refuse to disclose
the identity of a person who has furnished information
purporting to disclose a violation of a provision of the
laws of this State or of the United States to a
representative of the State or the United States or a
governmental division thereof, charged with the duty of
enforcing that provision, and evidence thereof is
inadmissible, unless the judge finds that (a) the identity
of the person furnishing the information has already
been otherwise disclosed or (b) disclosure of his
identity is essential to assure a fair determination of the
issues.
[N.J.R.E. 516.]
Disclosure is also required when "the informer is an active participant in
the crime for which [the] defendant is prosecuted[.]" State v. Foreshaw, 245
2
In Roundtree, disclosure of the CI was required because "[t]he informer was
an active participant in the transaction and a material witness on the issue of
defendant's guilt." 118 N.J. Super. at 32.
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N.J. Super. 166, 180-81 (App. Div. 1991) (citing State v. Oliver, 50 N.J. 39, 42
(1967)). However, "[i]t is now well established that 'absent a strong showing of
need, courts generally deny disclosure where the informer plays only a marginal
role, such as providing information or "tips" to the police or participating in the
preliminary stage of a criminal investigation.'" State v. McDuffie, 450 N.J.
Super. 554, 567 (App. Div. 2017) (quoting State v. Milligan, 71 N.J. 373, 387
(1976)).
In State v. Burnett, 42 N.J. 377, 388 (1964), the Supreme Court held the
Fourth Amendment does not require disclosure of an informant's identity for the
sole purpose of challenging "the existence of probable cause" for a search. See
also State v. Brown, 170 N.J. 138, 148 (2001) (upholding a trial court's denial
of a request to disclose the CI's identity, where the CI made controlled buys,
which the State used as the basis for a search warrant application).
Here, the motion judge concluded:
[D]efendant provides no legitimate reason for
disclosing the identity of the CI other than a belief that
exculpatory information may be revealed from the CI's
testimony. With nothing further than that bald
assertion, there is simply not enough to overcome the
State's interest in maintaining the anonymity of the CI,
since there is insufficient proof to establish disclosure
is essential.
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We agree. The CI was not a material witness because police
independently observed the controlled drug buy. Moreover, defendant's arrest
was due to the discovery of CDS and paraphernalia in defendant's residence, not
the transaction between the CI and defendant outside of defendant's residence.
Affirmed.
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