(concurring). The question, as framed in the opinion of the Court, is whether a prosecution for the unlawful sale of a controlled substance should be dismissed where an undercover city police officer purchased the controlled substance and obtained knowledge of the narcotics law violation in contravention of the statute, added in 1939,1 that authorizes a police officer to exercise "authority and powers” outside his own locality "when . . . enforcing the laws of this state in conjunction” with the state police or law enforcement officers in the locality "in which he may be, the same as if he were in his own county, city, village or township.”2
The opinion of the Court holds that although the officer exceeded his authority, the circuit court erred in dismissing the prosecution. The opinion *163states that the officer was not precluded from swearing to a felony complaint or acting as a complaining witness or testifying at the preliminary examination.3 The opinion also states that although this Court, in granting leave to appeal, specified that the parties were to brief the question "[w]hether the trial court erred in suppressing evidence” obtained by the officer, "the parties agree that suppression of the evidence is not an issue in this case because the trial judge did not suppress the evidence, he dismissed the case.”4
I agree that whether the officer may sign a felony complaint or testify at all, and whether evidence obtained by him outside of his bailiwick should be suppressed and the prosecution dismissed are each separate questions.
I concur in the result because I agree that the remedy for violation of the statute is neither barring the officer from signing a complaint or testifying at all nor dismissal of the prosecution.5 Until Meyer seeks an evidentiary hearing on the question whether the evidence obtained by the officer outside of his bailiwick should be suppressed, the circuit judge rules, the Court of Appeals reviews his decision, and the question is briefed and argued in this Court, the suppression question is not before us to decide._
*164I
Dale Carpenter, a member of the special investigation unit of the Kalamazoo Police Department, was working undercover when he communicated with defendant Paul Meyer’s girlfriend at their apartment to arrange for the purchase of cocaine. The apartment is in Parchment, another city in Kalamazoo County. The officer testified that when he made the purchase he had mistakenly believed Kalamazoo had an arrangement with Parchment that would have brought his undercover activity within the purview of the statute.
II
A citizen who is not a police officer is not likely to be exonerated from purchasing a controlled substance when he explains that he was acting undercover and merely acquiring evidence to be turned over to the authorities for prosecution of the seller. Carpenter’s unlawful activity cannot be justified on the basis that he did no more than a private citizen might do. While Carpenter "did not hold himself out as a police officer,”6 — no undercover officer does — he thought that as an undercover officer he was acting under the protection of the law7 in making a purchase of a controlled substance, an act that would subject a citizen not a police officer to prosecution. But for the protection the law provides undercover officers, they could not and would not act at all. Carpenter’s activity, dependent on the protection of the law, is subject to the law.
*165To be sure, Carpenter’s signing of a felony complaint and testifying is not in itself unlawful. Nevertheless, the evidence he obtained was unlawfully obtained.
The nature and extent of undercover surveillance activity is a matter for decision primarily by the community in which such activity may take place. What might be thought to be an appropriate method of law enforcement in western or northern Michigan might not be thought to be appropriate in Ann Arbor, East Lansing, or Detroit. While the prosecutor ultimately decides whether to prosecute, a police officer may not properly undertake covert activity outside his own bailiwick without prior authorization by an officer responsible to the citizenry of the locality in which the undercover activity is to occur.
Today’s decision should not be read as permitting, or extended to permit, police or prosecutorial authorities in one locality embarrassing law enforcement officers or a prosecutor in another locality by sending in probes and constraining the prosecutor to bring prosecutions that he might otherwise eschew, thereby also possibly tending to invade the Attorney General’s supervisory power.8
1939 PA 100.
MCL 764.2a; MSA 28.861(1).
Ante, p 162.
Ante, p 152.
I do not agree that if this Court were to dismiss the prosecution it would mean that those who engage in unlawful activity would not be able to act as complaining witnesses. It is one thing to permit a person who has engaged with scienter in criminal activity to act later as a complaining witness. It is quite another to permit a person charged with enforcing the law to engage in activities violative of the law. Allowing coconspirators or battered prostitutes to testify does not create or heighten incentives for unlawful activity. Felons do not engage in unlawful activity to obtain and later provide a prosecutor with evidence of their unlawful activity. The decision of an officer to act outside of his bailiwick is made ex ante, not ex post.
Meadows v State, 655 P2d 556, 557 (Okla Crim App, 1982).
"A liability is not imposed by this article or [sic] an authorized state, county, or local officer, engaged in the lawful performance of the officer’s duties.” MCL 333.7531(3); MSA 14.15(7531X3).
MCL 14.30; MSA 3.183.