Case Information
*1 Before HOLLAND , VAUGHN , and SEITZ , Justices.
ORDER
This 31 st day of January, 2017, having considered the briefs and the record below, it appears to the Court that: Antoine Miller appeals his convictions for conspiracy to commit
racketeering, aggravated possession of heroin, and other offenses related to his role
in a Delaware heroin trafficking ring. Miller raises seven issues in this appeal.
Three of those issues—that the jury instruction given by the Superior Court did not
adequately define “enterprise” according to the Delaware RICO statute, that the
State presented insufficient evidence of an association-in-fact enterprise, and that
the State improperly vouched for and bolstered certain witnesses’ testimony by
asking about their plea agreements—are the same issues decided in co-defendant
Andrew Lloyd’s appeal, and we affirm those issues for the reasons stated in that
opinion. Turning to the four remaining issues on appeal, Miller first argues that
the warrant application for the search of his residence was not supported by
probable cause, and thus the Superior Court abused its discretion by refusing to
suppress the drugs found in his home. Second, he argues that the Superior Court
should have granted a Flowers hearing because certain statements from a
confidential informant in the probable cause affidavit were incorrect. Third, he
argues that the Superior Court should have acquitted him because the State did not
offer expert testimony on the weight or chemical composition of the drugs found in
his home. Finally, Miller argues that his sentence was excessive. We have concluded that Miller’s arguments are without merit. Even
excluding from the affidavit the allegedly false information from the informant, the
affidavit establishes probable cause to support the search warrant for Miller’s
home. Further, Miller has not established the need for a Flowers hearing because
the additional information from the informant would not have materially aided his
defense. The court also correctly denied his motion for judgment of acquittal
because the State presented ample circumstantial evidence that Miller possessed at
least five grams of heroin. Finally, Miller’s sentence was within the statutory
guidelines and was not excessive. Therefore, we affirm the judgment of the
Superior Court. A multi-agency investigation into a Delaware heroin dealing ring
began in October 2014. Law enforcement developed as suspects Antoine Miller,
Andrew Lloyd, and approximately forty other individuals. On October 28, 2014,
after a lengthy investigation, Wilmington Police Detective Joseph Leary and
Delaware State Police Officer Michael Terranova submitted a ninety-nine
paragraph affidavit of probable cause requesting search warrants for ten different
residences. One of the residences was Miller’s home where he lived with his
girlfriend, Felicia Pagan. The affidavit contained the following facts:
• Pagan and Miller lived together at 810 West 9 th Street, Wilmington Delaware.
• Pagan owned a maroon 2006 Dodge Caravan which Lloyd used to deliver heroin. Police corroborated this information through surveillance and wiretaps.
• Police had information from a past proven reliable confidential informant that one of Lloyd’s associates drove the van to make heroin deliveries in July and again in September 2014.
• In October 2014, Detective Leary saw the van parked nearby during a controlled delivery with Lloyd.
• The confidential informant said that Pagan and Lloyd’s girlfriend used to lived together in Claymont and that they would store large quantities of heroin in their home.
• The informant took Lloyd to Miller’s house to pick up the van. Others referred to the van as “Lloyd’s van.”
• Before October 1, 2014, the van was owned by Yvonne Johnson until it was sold by the Philadelphia “supply source” for use by the drug trafficking organization’s members.
• Pagan had spoken with Lloyd about a threat of retaliation from a woman known as “Ratchet” who Miller had “suspected violent encounters involving firearms [with in] the past.” • Lloyd would use his associates’ homes as “stash houses” to hide heroin.
The Justice of the Peace Court granted the warrant on October 28, 2014. On October 30, 2014, police executed the warrant at Miller’s and
Pagan’s home. Police found 1,428 bags of heroin and thousands of dollars in cash
in the closet of their master bedroom. Police also saw someone throw a gun on the
roof of a neighboring residence which they later recovered. A New Castle County grand jury indicted Miller for various offenses
including criminal racketeering, conspiracy to commit criminal racketeering,
aggravated possession of heroin, and multiple weapons offenses. On July 27,
2015, Miller moved to suppress the gun and the heroin, arguing that the affidavit
submitted by police did not provide probable cause to issue the warrant.
Specifically, Miller argued that certain allegations in the affidavit were false. He
also challenged the nexus between the criminal activity described in the affidavit
and the place to be searched. Miller also filed a Flowers motion, requesting that
the Superior Court conduct an in camera examination of the confidential
informant.
(8) On September 18, 2015, the Superior Court held a hearing on the motions. After hearing testimony from several witnesses, the court ruled that there
was no basis to suppress the gun even if the warrant was flawed because an officer
saw Miller throw the gun onto the roof of an adjacent home, creating an
independent basis of probable cause. The court reserved judgment on the motion
to suppress the heroin and the Flowers motion. On October 7, 2015, the Superior
Court denied the motions and stated that it intended to file a written opinion, which
never occurred. A joint trial for co-defendants Miller and Lloyd commenced on
October 20, 2015, and continued for eight days. Before the court instructed the
jury, Miller moved for a judgment of acquittal claiming that the State failed to
present expert testimony on the weight or chemical composition of the substance
police retrieved from Miller’s home. The court denied the motion prior to
sentencing, finding that there was sufficient circumstantial evidence to find that the
substance was heroin. On October 30, 2015, the jury found Miller guilty of conspiracy to
commit racketeering, aggravated possession of heroin, two counts of second
degree conspiracy, and possession of drug paraphernalia, and acquitted him of the
remaining offenses. The Superior Court sentenced Miller to a total of twenty years
at Level V incarceration followed by decreasing levels of supervision. This appeal
followed. Miller first argues that the Superior Court erred by denying his motion to suppress. Specifically, he argues that certain facts in the affidavit were not true,
and that without those facts, there was an insufficient showing of probable cause to
issue a warrant. He also argues that there was an insufficient nexus between the
criminal activity alleged in the affidavit and Miller’s home. We review for an
abuse of discretion the denial of a motion to suppress after an evidentiary hearing
challenging the sufficiency of a search warrant. [4] “Under the United States and the Delaware Constitutions, a search
warrant may be issued only upon a showing of probable cause.” [5] To determine
whether probable cause exists, Delaware courts analyze, based on the totality of
the circumstances, whether an affidavit in support of a search warrant sets forth
facts within the four corners of the affidavit “adequate for a judicial officer to form
a reasonable belief that an offense has been committed and the property to be
seized will be found in a particular place.” As we have previously explained:
[T]his test requires the court to examine factors such as the reliability of the informant, the details contained in the informant’s tip and the degree to which the tip is corroborated by independent police surveillance and information. If an informant’s tip is sufficiently *7 corroborated by independent police work, the tip may form the basis for probable cause even though nothing is known about the informant’s credibility. [7] In Franks v. Delaware , the United States Supreme Court held that a
defendant is entitled to a hearing when he has made a “substantial preliminary
showing” that the police knowingly or “with reckless disregard for the truth” relied
on a false statement to establish probable cause. [8] “[U]nder Franks , the allegedly
false statements or omitted information must be necessary to a finding of probable
cause before suppression is proper.” At the hearing on the motion to suppress, Miller established that the
maroon van that the informant said he saw on multiple occasions was in fact
impounded at the Philadelphia Parking Authority from August 21 until it was sold
to Pagan on September 23. Thus, the allegations in the affidavit that the informant
saw someone making deliveries in a maroon van in July and early September were
not true. The van was also not sold to Pagan by the “supply source,” but by the
Philadelphia Parking Authority. Miller also established that Pagan had not lived
with Lloyd’s girlfriend in Claymont, but had lived with her in Edgemoor
approximately ten years earlier. The State argues that when inaccurate information is included in a
probable cause affidavit, the reviewing court can evaluate the contents of the
affidavit without the inaccurate information to determine whether the affidavit
establishes probable cause. If the informant’s inaccurate information is removed
from the affidavit, the State contends that probable cause still existed to support the
search warrant for Miller’s home. [10] We agree. Detective Leary stated in the affidavit that he, Detective Lloyd, and
the informant saw Lloyd use Pagan’s van to transport heroin, and that others
referred to it as Lloyd’s van. Detective Leary stated that he saw the van in October
2014 during a controlled heroin delivery involving Lloyd, and that an informant
took Lloyd and an associate to Pagan and Miller’s home to pick up the van. The
affidavit also explained how Lloyd would hide drugs in various associates’ homes,
and that “the sheer volume of illegal substances [Lloyd dealt,] coupled with []
Lloyd’s verified activity of relocating ‘stash houses’ demonstrates the likelihood
that illegal substances [were] stored in numerous ‘stash houses.’” For instance,
the affidavit stated that when police searched one of those houses under a warrant,
they found 1,942 bags of heroin. Read as a whole, and without the offending parts,
we find that the affidavit contained sufficient information for a magistrate to find
probable cause that Pagan and Miller were associated with Lloyd’s heroin
distribution organization, and that their residence would likely contain contraband
related to that enterprise. Miller makes a related argument that because the informant supplied
inaccurate information to the police, the Superior Court abused its discretion by
denying his Flowers motion. This Court reviews the denial of a Flowers motion
for abuse of discretion. [12] Under State v. Flowers [13] and Delaware Rule of Evidence
509(a), the State has a privilege to refuse to disclose the identity of a confidential
informant. An exception to the privilege exists if the defendant can “show, beyond
mere speculation, that the confidential informant may be able to give testimony
that would materially aid the defense.” [14] If the defendant meets this burden, he is
entitled to a hearing on the matter. [15] Miller sought in camera review of the confidential informant
referenced in the affidavit to “test[] the CI on the falsehoods revealed by Miller.” [16]
Although Miller did establish that certain statements were inaccurate, we agree
with the Superior Court that Miller did not show how additional questioning of the
informant would materially aid his defense. Thus, the Superior Court did not
abuse its discretion by declining to grant a Flowers hearing. Miller next argues that the Superior Court should have acquitted him
on the charge of aggravated possession of heroin because the State failed to
produce expert testimony about the content or weight of the drugs found in his
home. We review the denial of a motion for judgment of acquittal to determine
“whether any rational trier of fact, viewing the evidence in the light most favorable
to the State, could find the defendant guilty beyond a reasonable doubt.” [17] To
convict Miller of aggravated possession of heroin, the State had to prove that
Miller knowingly possessed five grams or more of heroin. [18] Chemical testing is
not necessary to support a conviction. [19] “The well established rule in Delaware is
that direct evidence is not necessary to establish guilt, because ‘guilt may be
proven exclusively through circumstantial evidence since this Court does not
distinguish between direct and circumstantial evidence in a conviction context.’” The State produced sufficient evidence to prove that the substance in
Miller’s closet was heroin. Police found 1,428 bags of a white powdery substance
packaged in bundles of thirteen in Miller’s closet. Each bag was stamped “El
Che.” Lloyd packaged his heroin in bundles of thirteen and labeled the bags “El
Che.” In the closet where they found the heroin, police found a large amount of
cash. A witness testified that she did not receive any complaints that the product
she sold was fake heroin. Detective Lloyd testified that based on the forensic
chemist’s calculation of the drugs, fifty bundles of heroin (650 bags) would weigh
7.5 grams—police found 1,428 bags in Miller’s closet. Therefore, a rational trier
of fact could find that Miller possessed more than five grams of heroin. Finally, Miller argues that his “minimal acts” do not justify a sentence
of twenty years for conspiracy to commit racketeering and aggravated possession.
This Court will not ordinarily find that a sentencing judge abused his discretion if
the sentence is within the statutory limits prescribed by the legislature. “To
disturb a sentence on appeal, the defendant must show either that it was an illegal
sentence or that it was based on factual predicates which are false, impermissible,
or lack minimal reliability, judicial vindictiveness or bias, or a closed mind.”
Miller does not argue that the Superior Court relied on impermissible or false
information or that his sentence exceeds the statutory guidelines. Thus, this Court
has no basis to revisit his sentence.
NOW, THEREFORE, IT IS HEREBY ORDERED that the judgment of the Superior Court is AFFIRMED.
BY THE COURT: /s/ Collins J. Seitz, Jr.
Justice
[1] See Lloyd v. State , __ A.3d __, 2016 WL 7383768 (Del. Dec. 20, 2016).
[2] State v. Flowers , 316 A.2d 564 (Del. Super. 1973).
[3] App. to Opening Br. at 136.
[4] Rybicki v. State , 119 A.3d 663, 668 (Del. 2015).
[5] Bradley v. State , 51 A.3d 423, 431 (Del. 2012) (internal citation omitted).
[6] Sisson v. State , 903 A.2d 288, 296 (Del. 2006).
[7] LeGrande v. State , 947 A.2d 1103, 1107-08 (Del. 2008).
[8] Sisson v. State , 903 A.2d at 300; Franks v. Delaware , 438 U.S. 154, 155-56 (1978).
[9] Restrepo-Duque v. State , 130 A.3d 340 (Del. 2015), cert. denied , 136 S. Ct. 2413 (2016).
[10] See United States v. Nora , 765 F.3d 1049, 1058 (9th Cir. 2014) (internal citation omitted) (“A search warrant isn’t rendered invalid merely because some of the evidence included in the affidavit is tainted. The warrant remains valid if, after excising the tainted evidence, the affidavit’s remaining untainted evidence would provide a neutral magistrate with probable cause to issue a warrant.”); State v. Goecks , 333 P.3d 1227, 1235 (Or. Ct. App. 2014) (emphasis omitted) (The judge must evaluate “whether the defendant has proven by a preponderance of the evidence that the evidence upon which the magistrate relied was inaccurate. If the defendant proves inaccuracies, the judge must then assess the sufficiency of the affidavit on the basis of the remaining accurate facts in the affidavit.”).
[11] App. to Opening Br. at 193.
[12] Cooper v. State , 32 A.3d 988, 2011 WL 6039613, at *8 (Del. Dec. 5, 2011) (Table) (“We review the Superior Court’s evidentiary rulings, including the denial of a motion to disclose an informant’s identity, for abuse of discretion.”).
[13] 316 A.2d 564 (Del. Super. 1973).
[14] Cooper , 2011 WL 6039613 at *9 (internal citation omitted).
[15] See McNair v. State , 947 A.2d 1122, 2008 WL 199831, at *1-2 (Del. Jan. 23, 2008) (Table).
[16] Opening Br. at 42.
[17] Robertson v. State , 596 A.2d 1345, 1355 (Del. 1991).
[18] See 10 Del. C. § 4752; Wright v. State , 126 A.3d 1109, 2015 WL 6150933, at *2 (Del. Oct. 19, 2015) (Table).
[19] Seward v. State , 723 A.2d 365, 370 (Del. 1999).
[20] Id . at 369 (quoting Davis v. State , 706 A.2d 523, 525 (Del. 1998) (per curiam)).
[21] Doughty v. State , 147 A.3d 1134, 2016 WL 4938878, at *2 (Del. Sept. 14, 2016) (Table).
[22] Lewis v. State , 144 A.3d 1109, 1118 (Del. 2016) (internal citation omitted).