(dissenting):
In my dissent to the original opinion, I pointed out that a “foreign government, like a private person, is just not subject” to the prohibitions of the United States Constitution. 23 U.S.C.M.A. 525, 529, 50 C.M.R. 664, 668, 1 M.J. 145, 150 (1975). As the exclusionary rule applies only to those prohibitions, and they govern only Federal and State authorities, I perceive no justification to inquire into whether the search by a person not subject to the constitutional prohibitions comports with local law. Consequently, I disagree with the new pronouncement by the majority that the Government must first demonstrate that a search by foreign police “was lawful, applying the law of their sovereign,” before evidence obtained in the search can be admitted at a court-martial, notwithstanding there was no American involvement whatever.
I further disagree with the majority’s pronouncement that the mere presence of “American officials ... at the scene of a foreign search” conducted by a foreign police brings the search within the ambit of the constitutional prohibition against unreasonable search and seizure. Mere presence is not participation. Our cases and the federal civilian cases emphasize that for the constitutional exclusionary rule to be operative there must be some significant connection between the American authorities and *340the foreign police so that it can reasonably be concluded that the search was a common or joint endeavor. United States v. Schnell, 23 U.S.C.M.A. 464, 50 C.M.R. 483, 1 M.J. 94 (1975), and cases cited therein. In my earlier dissent, I considered it unnecessary to determine whether the Manual for Courts-Martial, United States, 1969 (Rev), prescribed an evidentiary rule more restrictive than the constitutional exclusionary rule. The majority now conclude that it does. Even that rule, however, does not attach an American connection to a foreign police search on the basis of mere presence. Unless contrary to the Constitution or the Uniform Code, rules of evidence prescribed in the Manual have the force of law and are binding upon this Court. United States v. Smith, 13 U.S.C.M.A. 105, 32 C.M.R. 105 (1962). By its terms, the Manual requires more than presence at the scene.1 Moreover, the draftsmen of the Manual refer expressly to United States v. DeLeo, 5 U.S.C.M.A. 148, 17 C.M.R. 148 (1954), as authority for their statement that “the rule would seem to have no application to searches conducted by foreign authorities.” Department of the Army Pamphlet No. 27-2, Analysis of Contents, Manual for Courts-Martial, United States, 1969 (Rev), at 27-39. In DeLeo, the Court upheld the admission of evidence obtained by foreign police in a search conducted by them but which was attended by American agents who did not participate.2
Considering the evidence in this case of the conduct of the American agents at the scene of the search, I remain convinced that they did not participate in any way as to constitute the search a common or joint venture. I would, therefore, affirm the decision of the United States Air Force Court of Military Review.
. Paragraph 152, MCM, reads as follows:
152. CERTAIN ILLEGALLY OBTAINED EVIDENCE. Evidence is inadmissible against the accused:
If it was obtained without the freely given consent of the accused as a result of an unlawful search of another’s premises on which the accused was legitimately present, and the search in question was conducted, instigated, or participated in by an official or agent of the United States, or any State thereof or political subdivision of either, who was acting in a Governmental capacity. [Emphasis in text.]
. It is worth noting that the claim of the accused in United States v. DeLeo, 5 U.S.C.M.A. 148, 17 C.M.R. 148 (1954), that mere presence at the scene is sufficient to involve an American agent in a foreign search was not supported by the cited case, Byars v. United States, 273 U.S. 28, 47 S.Ct. 248, 71 L.Ed. 520 (1927). In Byars, the federal agent admitted that he entered the private premises of the accused only on the authority of a state warrant which was later determined to be insufficient to satisfy the constitutional provision, and that he “ ‘searched’ ” one of the rooms and “ ‘took possession’ ” of the evidence that he found. On the facts, the Supreme Court concluded that the Federal agent “was not invited to join the state squad as a private person might have been, but was asked to participate and did participate as a federal enforcement officer.” Id. at 31-32, 47 S.Ct. at 249 (emphasis added).