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

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).

NOT FOR PUBLICATION WITHOUT THE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.

December 28, 2018
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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 
3

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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-ofknowledge' 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 fieldtested 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 
10 A-5553-16T3

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 
11 A-5553-16T3

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. 
12 A-5553-16T3

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:
13 A-5553-16T3

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).
14 A-5553-16T3

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.
15 A-5553-16T3

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.
16 A-5553-16T3

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.