## Facts

- Military investigators received information that a Marine, Benjamin Lake, was selling LSD to other service members on a Marine base in Hawai‘i.
- Army CID and NCIS conducted a joint investigation; Lake sold LSD to an undercover CID agent on October 31, 1998 and again on November 13, 1998.
- After the November 13 sale, NCIS arrested Lake; Lake agreed to cooperate and identified Mark Steven Hitchcock, a civilian, as the LSD source.
- Because the suspected source was a civilian, NCIS requested DEA participation; the DEA assumed control of the investigation, while NCIS agents continued assisting.
- Under DEA direction, Lake made monitored calls to Hitchcock from the DEA office, met Hitchcock to pay for LSD using DEA funds, and placed an additional monitored order on November 16, 1998.
- Agents obtained and executed a federal warrant to search Hitchcock’s residence on November 16, 1998; the magistrate judge mistakenly dated the warrant November 17, 1998.
- Hitchcock moved to dismiss the indictment or suppress all evidence based on alleged violations of the Posse Comitatus Act and 10 U.S.C. § 375, and separately moved to suppress evidence from the home search based on the warrant’s date error.
- The district court denied the motions and Hitchcock was convicted and sentenced; he appealed.

## Issues

1. Whether CID and NCIS participation in an investigation leading to the prosecution of a civilian violated the Posse Comitatus Act, 18 U.S.C. § 1385, or 10 U.S.C. § 375, requiring dismissal or suppression.
2. Whether evidence from the November 16, 1998 search should be suppressed because the warrant was mistakenly dated November 17, 1998.
3. Whether the sentence violated Apprendi principles regarding factfinding tied to drug quantity and mandatory minimum penalties.

## Decision

- The court affirmed the denial of dismissal and suppression based on the Posse Comitatus Act and 10 U.S.C. § 375.
- The court held the military involvement fell within the independent military purpose exception because the investigation originated in, and furthered, enforcement interests tied to drug distribution among service members.
- The court affirmed denial of suppression of evidence seized from Hitchcock’s residence, treating the warrant’s erroneous date as a clerical mistake that did not make the search unauthorized.
- The court rejected the Apprendi-based sentencing challenge, holding the sentence was not unlawful under controlling precedent concerning mandatory minimums.

## Legal Principles

- Military participation in an investigation that results in civilian prosecution does not violate the Posse Comitatus Act or 10 U.S.C. § 375 where the conduct is tied to an independent military purpose and civilian authorities maintain the primary role in the civilian law-enforcement case.
- A clerical dating error on a search warrant does not require suppression when the warrant was actually issued and executed contemporaneously and the search was conducted within the warrant’s intended scope.
- Apprendi does not bar judicial findings that affect mandatory minimum sentences when those findings do not increase the statutory maximum penalty.

## Conclusion

The Ninth Circuit affirmed Hitchcock’s conviction and sentence, holding that military agents’ assistance in a drug investigation targeting service-member misconduct fit an independent military purpose, the warrant’s incorrect date did not invalidate a search executed upon issuance, and the sentence did not violate Apprendi principles as applied to mandatory minimums.


United States v. Hitchcock, 286 F.3d 1064 (9th Cir. 2002)