(dissenting):
To say that our armed forces carry with them the Constitution as well as the flag is one thing. To say that the Constitution operates against a foreign government in its own country is quite another; and, in my opinion, quite wrong. Yet, that is what the majority hold in saying that the evidence in issue was inadmissible because the exclusionary rule is "a positive command of the Constitution.”
The exclusionary rule is indeed a part of the constitutional protection against unreasonable search and seizure, but the exclusionary rule does not forbid either the United States or a state from using evidence obtained by persons unconnected with the Federal or a State Government and acting without the participation of agents of either government. That is settled constitutional doctrine, and the majority’s repudiation of it is, in my opinion, unjustified and unsound.
It has always been the constitutional rule that rights accorded individuals in the Bill of Rights are protections against actions by the Federal Government, not actions by State officials3 or private persons.4 Since adoption of the Fourteenth Amendment, a number, but not all, of the protections enumerated in the Bill of Rights have been recognized as part of the "due process” a state must accord every person subject to its authority when it seeks to deprive him of his "life, liberty, or property.” In time, the individual’s protection against unreasonable search and seizure by Federal agents, assured by the Fourth Amendment, was deemed a "due process” right of the individual secured against State action by the Fourteenth Amendment. As a result, evidence obtained by unreasonable search and seizure, by either Federal or State agents, is evidence obtained in violation of the Constitution. But, the Constitution’s prohibitions apply only to Federal and State action, and the sanction of the exclusionary rule applies only to evidence obtained by such governments.
Four years ago, the United States Supreme Court reaffirmed that evidence improperly taken from an accused by a private person, without government participation, is not subject to the exclusionary rule. In Coolidge v New Hampshire, 403 US 443, 485, 489 (1971), two police officers went to defendant’s home and spoke to his wife. The defendant was then suspected of murder and was undergoing police interrogation at another place. As a result of the conversation with the officers, the defendant’s wife gave them several guns and some clothing that belonged to the defendant. At the trial, the defendant contended these articles were obtained in violation of his constitutional right against unreasonable search and seizure. The Court rejected the contention, saying:5
Had Mrs. Coolidge, wholly on her own initiative, sought out her husband’s guns and clothing and then taken them to the police station to be used as evidence against him, there can be no doubt under existing law that the articles would later have been admissible in evidence. . . . The question presented here is whether the conduct of the police officers at the Coolidge house was such as to make her actions their actions for purposes of the Fourth and Fourteenth Amendments and their attendant exclusionary rules. The test, as the petitioner’s argument suggests, is whether Mrs. Coolidge, in light of all the circumstances of the case, must be regarded *529as having acted as an "instrument” or agent of the state when she produced her husband’s belongings.
. . . The exclusionary rules were fashioned "to prevent, not to repair,” and their target is official misconduct. They are "to compel respect for the constitutional guaranty in the only effectively available way — by removing the incentive to disregard it.” . . . But it is no part of the policy underlying the Fourth and Fourteenth Amendments to discourage citizens from aiding to the utmost of their ability in the apprehension of criminals. If, then, the exclusionary rule is properly applicable to the evidence taken from the Coolidge house on the night of February 2, it must be upon the basis that some type of unconstitutional police conduct occurred.
During its last term, the Supreme Court again emphasized that the exclusionary rule was not intended "to redress the injury to the privacy of the search victim,” but to deter "unlawful police conduct,” that is "governmental intrusions.” United States v Calandra, 414 US 338, 347, 354 (1974). As the Court of Appeals for the Ninth Circuit has said: "If the search was private, the Fourth Amendment does not apply.” United States v Ogden, 485 F2d 536, 538 (9th Cir 1973).
What is true of action by a private person is equally true of action by a foreign government. It bears repeating that the Fourth Amendment protects only against action by the Federal Government, and the Fourteenth Amendment protects only against action by a State of the United States. A foreign government, like a private person, is just not subject to these provisions. As we recently observed, "the provisions of the Constitution of the United States are not binding upon . . . [foreign] officials in the performance of their respective functions as defined by the laws” of their country. Autry v Hyde, 19 USCMA 433, 436, 42 CMR 35, 38 (1970). It follows that since the constitutional provision as to unreasonable search and seizure does not apply to a foreign government, the exclusionary rule, whose very existence depends upon the constitutional provision, does not apply. Unless there is evidence of impermissible participation by American agents, evidence obtained by foreign police in a search conducted in their country pursuant to their law is not excludable from evidence in an American court because the search did not meet American constitutional standards.6
Nothing in the majority opinion convinces me that the settled limitation on the exclusionary rule is wrong constitutional doctrine. Accordingly, I adhere to it. Further, I would not overrule United States v DeLeo, 5 USCMA 148, 17 CMR 148 (1954), for reasons given by the majority. It may be, as was indicated in United States v Schnell,7 that the evi-dentiary rule provided in the Manual for Courts-Martial, United States, 1969 (Rev.), has replaced the DeLeo perception of the amount of participation by American agents in a foreign search that will make the search subject to our constitutional standards, but I need not reach that question. I am satisfied from the evidence of record that what was done by American agents in this case did not constitute disqualifying participation. Accordingly, I would affirm the decision of the Court of Military Review.
Peters v Kiff, 407 US 493 (1972); Malloy v Hogan, 378 US 1 (1964).
Coolidge v New Hampshire, 403 US 443, 487 (1971).
Id. at 487-88.
Meister v Commissioner, 504 F2d 505 (3rd Cir 1974); United States v Tierney, 448 F2d 37 (9th Cir 1971); United States v Callaway, 446 F2d 753 (3rd Cir 1971); Stonehill v United States, 405 F2d 738 (9th Cir 1968).
23 USCMA 464, 50 CMR 483 (1975).