            IN THE SUPREME COURT OF THE STATE OF DELAWARE


ANTOINE L. MILLER,                     §
                                       §     No. 654, 2015
      Defendant-Below,                 §
      Appellant,                       §     Court Below: Superior Court
                                       §     of the State of Delaware
      v.                               §
                                       §     Cr. ID. No. 1411011958
STATE OF DELAWARE,                     §
                                       §
      Plaintiff-Below,                 §
      Appellee.                        §

                          Submitted: December 7, 2016
                          Decided:   January 3, 2017

Before HOLLAND, VAUGHN, and SEITZ, Justices.

                                       ORDER

      This 3rd day of January, 2017, having considered the briefs and the record

below, it appears to the Court that:

      (1)    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.1

         (2)    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 Flowers2 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.

         (3)    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

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).

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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.

      (4)    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.

      (5)    The affidavit contained the following facts:

      • Pagan and Miller lived together at 810 West 9th 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.”

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         • 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.”3
         • 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.

         (6)     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.

         (7)     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.

3
    App. to Opening Br. at 136.

                                           4
      (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.

      (9)    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.

      (10) 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




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at Level V incarceration followed by decreasing levels of supervision. This appeal

followed.

       (11) 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

       (12) “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.”6 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

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).

                                                 6
       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

       (13) 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.”9

       (14) 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.




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).

                                               7
       (15) 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.

       (16) 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 also 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.’”11


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.

                                                 8
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.

       (17) 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. Flowers13 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




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).

                                               9
       (18) 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.

       (19) 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




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).

                                              10
proven exclusively through circumstantial evidence since this Court does not

distinguish between direct and circumstantial evidence in a conviction context.’”20

         (20) 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.

         (21) 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.21 “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,



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).

                                                11
or lack minimal reliability, judicial vindictiveness or bias, or a closed mind.”22

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




22
     Lewis v. State, 144 A.3d 1109, 1118 (Del. 2016) (internal citation omitted).

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