concurring:
While I concur in the judgment of the court and in much of Judge Greene’s excellent opinion, I write separately because it seems necessary to meet more directly appellant’s arguments concerning the exclusionary rule. Appellant contends that there should be an exclusionary rule in cases where foreign law enforcement authorities secure evidence by means which “shock the judicial conscience.” Opening Brief for Appellant at 23-28. He would have us derive this rule not from the Fourth Amendment but from our supervisory power over criminal proceedings. Yet, neither this court nor the Supreme Court has ever before required such a rule, and I can think of no useful purpose the proposed rule would serve. Indeed, I do not believe that we have the authority to refuse to consider evidence of this kind.
I.
Appellant relies upon cases from other circuits that adopt the rule he urges upon us. Though it is clear that the Fourth Amendment prohibition of “unreasonable searches and seizures” has no application to illegal foreign searches conducted exclusively by foreign officials, United States v. Janis, 428 U.S. 433, 455-56 n. 31, 96 S.Ct. 3021, 3032-33 n. 31, 49 L.Ed.2d 1046 (1976), these circuits would derive an exclusionary rule for foreign searches from the supervisory power of the federal courts over the administration of criminal justice. McNabb v. United States, 318 U.S. 332, 340, 63 S.Ct. 608, 612, 87 L.Ed. 819 (1943) (Frankfurter, J.). The initial difficulty with this approach — and I believe it to be a fatal one — is that our supervisory powers have been substantially curtailed by the Supreme Court’s recent decision in United States v. Payner, 447 U.S. 727, 100 S.Ct. 2439, 65 L.Ed.2d 468 (1980). Under that decision, we clearly lack supervisory power to create any exclusionary rule that expands the rule the Supreme Court has created under the Fourth Amendment. That forecloses any exclusion of evidence seized abroad by foreign police.1
In Payner, special agents of the Internal Revenue Service arranged for a private investigator to conduct an unconstitutional search of the belongings of a bank vice president in the hope of obtaining incriminating evidence against third parties. As a result of this search, evidence was obtained that ultimately incriminated a third party, Jack Payner. The district court found that *1321the IRS was deliberately conducting unconstitutional searches in order to find evidence against third-party suspects. The IRS was informing its agents that these suspects would lack standing under the Fourth Amendment to challenge the legality of the original unconstitutional searches. Because of the government’s willful disobedience of the law, the district court employed its supervisory power to exclude the tainted evidence incriminating Payner even though the Fourth Amendment did not apply. The Sixth Circuit affirmed, 590 F.2d 206 (1979) (per curiam), and the Supreme Court reversed.
Justice Powell, writing for the Court, held that the supervisory power could not be used to exclude evidence in a criminal prosecution where the defendant would not have had standing to seek exclusion under the Fourth Amendment. To allow exclusion under the supervisory power, he said, would be to erode the Supreme Court’s Fourth Amendment case law with its carefully drawn balance between individual and governmental rights. Justice Powell observed that
[t]he values assigned to the competing interests do not change because a court has elected to analyze the question under the supervisory power instead of the Fourth Amendment. In either case, the need to deter the underlying conduct and the detrimental impact of excluding the evidence remain precisely the same.
447 U.S. at 736,100 S.Ct. at 2447. Accordingly, the Court grafted the standing limitations of the Fourth Amendment onto the supervisory power. The Court also stated that the purposes of the supervisory power and of the Fourth Amendment exclusionary rule are essentially alike. Id. at 735-36 n. 8, 100 S.Ct. at 2446-47 n. 8.
The Payner analysis suggests that appellant errs for two reasons. First, Payner demonstrates that we should not suppress evidence under our supervisory authority in a way that would disturb the balance struck by the Court’s Fourth Amendment case law.2 That case law, as noted above, refuses to apply an exclusionary rule to evidence secured by foreign law enforcement authorities. This follows from the Court’s holding that where the exclusionary rule “does not result in appreciable deterrence, its use is not warranted.” United States v. Leon, — U.S. -, 104 S.Ct. 3405, 3414, 82 L.Ed.2d 677 (1984). The exclusion of evidence by American courts because the evidence was deemed obtained in objectionable ways would in no way deter conduct by foreign police acting in their own countries for their own reasons. In such cases, exclusion under the supervisory power would be improper since it would seriously alter the balance the Court has already struck between the “need to deter ... underlying [misjconduct and the detrimental impact of excluding ... evidence.” Payner, 447 U.S. at 736, 100 S.Ct. at 2447.
In addition, Payner changes the emphasis in earlier cases concerning the legitimate reasons for excluding evidence under the supervisory power. Whereas McNabb emphasized only the need to protect the integrity of the court, Payner suggests that exclusion under the supervisory power and the Fourth Amendment serve “precisely the same purposes.” 447 U.S. at 736 n. 8, 100 S.Ct. at 2447 n. 8. In Payner those purposes were identified as involving both the deterrence of illegality and the protection of judicial integrity. As we have seen, however, deterrence is now essential before exclusion can ever be appropriate under the Fourth Amendment. United States v. Leon, 104 S.Ct. at 3414. Pursuant to Payner, some degree of deterrence also appears to be essential before exclusion can ever be justified under the supervisory power as well. Accord United States v. Hasting, 461 U.S. 499, 505, 103 *1322S.Ct. 1974, 1978, 76 L.Ed.2d 96 (1983) (supervisory power exists in part to deter official misconduct).
By grafting Fourth Amendment standing requirements onto the supervisory power, Payner substantially de-emphasized the notion that that power is exercised only to protect the integrity of the court. Individual standing requirements make no sense where the injury complained of is exclusively to the court’s integrity and reputation. As Justice Marshall noted .in dissent, Payner's standing requirement for invoking the supervisory power implies “that the only value served by suppression [under that power] is deterrence of future misconduct.” Payner, 447 U.S. at 745-46 n. 10, 100 S.Ct. at 2451-52 n. 10 (Marshall, J., dissenting).
This case is thus even easier than Payner since the IRS officials who were conducting illegal searches in that case could presumably have been deterred if the Supreme Court had been willing to exclude the evidence they had seized. As I have noted, no such deterrence is ever possible with foreign searches: Evidentiary rules in this country cannot be expected to influence the investigative practices of foreign police.3
Appellant notes correctly that several other circuits have previously stated that we should use our supervisory power to suppress evidence of a foreign search secured by means which “shock the judicial conscience.” United States v. Hensel, 699 F.2d 18, 25 (1st Cir.), cert. denied, 461 U.S. 958, 103 S.Ct. 2431, 77 L.Ed.2d 1317 (1983); United States v. Maher, 645 F.2d 780, 783 (9th Cir.1981); Stowe v. Devoy, 588 F.2d 336, 341 (2d Cir.1978), cert. denied, 442 U.S. 931, 99 S.Ct. 2862, 61 L.Ed.2d 299 (1979); United States v. Rose, 570 F.2d 1358, 1362 (9th Cir.1978); United States v. Morrow, 537 F.2d 120, 139 (5th Cir.1976), cert. denied, 430 U.S. 956, 97 S.Ct. 1602, 51 L.Ed.2d 806 (1977); United States v. Cotroni, 527 F.2d 708, 712 n. 10 (2d Cir.1975), cert. denied, 426 U.S. 906, 96 S.Ct. 2226, 48 L.Ed.2d 830 (1976); Birdsell v. United States, 346 F.2d 775, 782 n. 10 (5th Cir.), cert. denied, 382 U.S. 963, 86 S.Ct. 449, 15 L.Ed.2d 366 (1965). Almost all of these decisions, however, predate the Supreme Court’s decision in Payner, and none of them discusses Payner or the limits which it imposes on the supervisory power of the federal courts. Moreover, none of these cases actually reversed a conviction under the shock-the-conscience rationale. The statements endorsing that rationale are dicta which we must reject in light of Payner.
Supervisory authority to exclude such evidence must also be questioned because of another development which the case law in other circuits appears not to have considered. Since McNabb was decided, the Federal Rules of Evidence have been codified and approved by Congress. One of those rules directs that the courts should admit relevant evidence “except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority.” Fed.R.Evid. 402 (emphasis added). No exception is made allowing courts to exclude relevant evidence solely pursuant to a supervisory power. See id. Notes of Committee on the Judiciary, House Report No. 93-650. Consequently, there is doubt as to our continued authority ever to reject any relevant evidence under that power. Payner and the other recent supervisory power cases do not address this question and consequently they do not establish the continued vitality of the su*1323pervisory power in the face of Congress’ actions.4 But see Payner, 447 U.S. at 751 n. 17, 100 S.Ct. at 2454 n. 17 (Marshall, J., dissenting). It seems likely to me, however, that the courts are no longer as free to rewrite the Federal Rules of Evidence as they were when McNabb was decided. At that time the courts had exclusive responsibility for the devising of evidentiary rules.5 See also United States v. Russell, 411 U.S. 423, 435, 93 S.Ct. 1637, 1644, 36 L.Ed.2d 366 (1973) (Rehnquist, J.) (supervisory power does not confer on “the federal judiciary a ‘chancellor’s foot’ veto over law enforcement practices of which it [does] not approve”).
II.
Even if we had the power sometimes to exclude evidence obtained through illegal foreign searches, I would still disagree with the case law adopting a shock-the-conscience test to determine what evidence is to be excluded.6 Such tests are wholly indeterminate and vague, and can lead to unprincipled, ad hoc decision-making. Rochin v. California, 342 U.S. 165, 174-77, 72 S.Ct. 205, 210-12, 96 L.Ed. 183 (1952) (Black, J., concurring). There is no need to extend such a test from the due process context, where it is already required, Rochin v. California, 342 U.S. at 172-73, 72 S.Ct. at 209-10 (Frankfurter, J.), to this context, where it is not. The inability of the other circuits to state a more precise rule of law for excluding evidence obtained in foreign searches suggests to me that they have embarked on a very dubious enterprise.
It is not, at all events, easy to see what the shock-the-conscience test adds, or should be allowed to add, to the deterrent function of exclusionary rules. Where no deterrence of unconstitutional police behavior is possible, a decision to exclude probative evidence with the result that a criminal goes free to prey upon the public should shock the judicial conscience even more than admitting the evidence. The “integrity of the court” should not be preserved at the expense of the public. See also United States v. Leon, 104 S.Ct. at 3413; Stone v. Powell, 428 U.S. 465, 491, 96 S.Ct. 3037, 3051, 49 L.Ed.2d 1067 (1976). Reflections such as these, perhaps, have led the Supreme Court to conclude that “appreciable deterrence” is the sine qua non for the *1324exclusion of illegally seized but probative evidence. United States v. Leon, 104 S.Ct. at 3414; United States v. Janis, 428 U.S. at 454, 96 S.Ct. at 3032. It appears, therefore, that the shock-the-conscience formulation has been deprived of analytical power and is, in this area, little more than a rhetorical flourish in decisions arrived at upon other grounds. We would do well to make that fact explicit and so discourage the making and consideration of fruitless motions to suppress evidence.7
. I do not consider here the applicability of the Fourth Amendment exclusionary rule in cases where American officials or officers participated in the illegal search in some significant way. In some such cases, deterrence principles might still be deemed to operate, and the Fourth Amendment might also be triggered. In this case, "it is clear from the record that there was no United States participation whatever in either of the searches of [Mount's] residence." Maj. op. at 1318.
. This court has twice suggested that under Payner we should not use our supervisory power unless a defendant’s specific constitutional rights have been violated. United States v. Byers, 740 F.2d 1104, 1122-23 (D.C.Cir.1984) (en banc) (Scalia, J.); United States v. Kelly, — U.S. -, 104 S.Ct. 264, 78 L.Ed.2d 247 (1983). There is no allegation of such a violation in the present case.
. Payner also suggests that we could not employ our supervisory authority in cases involving foreign searches because in prosecutions resulting from such searches the foreign government will not be among the parties before the bar. Under Payner, our supervisory power is strictly limited to supervision of " ‘the administration of criminal justice' among the parties before the bar." 447 U.S. at 735 n. 7, 100 S.Ct. at 2446 n. 7 (emphasis added; citation omitted). Here the British government is not a party, and accordingly we would be precluded from using our supervisory power even if our consciences had been shocked. It should also be noted that the British police officers who conducted the searches in this case testified that they believed those searches were legal under British law. Brief for Appellee at 21.
. See abo Judge Scalia’s opinion for the en banc court in United States v. Byers, 740 F.2d at 1122, observing that "[t]he Supreme Court’s last holding sanctioning the use of the supervisory power to exclude evidence is now almost twenty-five years old [and] [t]hat case involved evidence acquired by the government through unconstitutional means.”
. I do not mean to imply, of course, that Congress could impose evidentiary rules on the courts that violated the constitutional rights of litigants or that impaired our ability to carry out our responsibilities as a separate branch of government under Article III.
. The majority cites this case law approvingly and goes on to suggest that it will "not normally” exclude evidence obtained through illegal foreign searches. Maj. op. at 1318. However, the Supreme Court has announced a flat rule against such exclusion, not that exclusion is not normally proper. Moreover, the majority explicitly reserves decision on the continued vitality of the supervisory power and the shock-the-conscience test notwithstanding the clear implications of Payner, Maj. op. at 1318 n. 5. These comments will undoubtedly encourage the continued making and consideration of suppression motions based on the shock-the-conscience formulation. The majority appears to be reserving the option of creating an exception to Payner if it finds some future case sufficiently disturbing.
The majority’s refusal to apply clear Supreme Court precedent today creates doubt as to this court’s willingness to follow that precedent in the future. That doubt in turn will generate costly litigation over matters that should not be open to dispute. A clear rule of law, grounded in Supreme Court precedent, would save future litigants much time and money.
The majority prefers not to announce such a rule because in its view this case does not present the problem of a shockingly illegal foreign search. That, however, is entirely beside the point. The per se rule of non-exclusion is clearly required by Payner and will not be affected by the facts of future cases. The legal issue at stake here is one of pure law, goes to the authority of this court, and is susceptible to a per se approach. It is thus appropriate for us to resolve appellant’s claim by a rule of law. The legal issue has been properly raised and will not be affected by the subjective impressions of future panels as to what illegal foreign searches are shocking.
. Given the facts of this case, I need not address the possible due process or self-incrimination problems that might bar the admission of inherently unreliable evidence obtained by foreign police through beatings, torture, coercive interrogations or other forms of physical abuse. See, e.g., Rochin v. California, 342 U.S. at 172-73, 72 S.Ct. at 209-10. Obviously, courts should continue to exclude evidence if it is inherently unreliable or if it is irrelevant to the crime charged. I do not agree, however, that these decisions to exclude can ever be made through an ad hoc exercise of the "supervisory power.” Compare maj. op. at 1318 n. 5. Under Payner, it will be necessary instead that we exclude evidence only when specific constitutional or legal provisions call for that remedy.