(dissenting). Defendants were each charged with two counts of delivery of a controlled substance, MCL 335.341(l)(b); MSA 18.1070(41)(l)(b). Prior to trial they moved to exclude the testimony of the prosecution’s main *217witness, Michael Hall. The trial court granted the motion and plaintiff appeals.
In the summer of 1977, Michael Hall, a member of the United States Air Force stationed at K. I. Sawyer Air Force Base in Marquette County, Michigan, was summoned to the office of a special agent of the Office of Special Investigation (ÓSI) of the Air Force. There he was confronted by Special Agent Kenneth Parker and two members of the Michigan State Police, Detective Sergeant August Moratti and Trooper David Cope. The state police officers showed Hall a warrant for his arrest, by civilian authorities, on charges of delivery of marijuana. (The record also suggests that Hall was accused by the Air Force of the sale of a controlled substance.) The police officers offered Hall an opportunity to work with them in attempting to find the source of contraband drugs in the Marquette County area. He was also to work with the OSI in this endeavor. Hall was led to believe that, in exchange for his cooperation, he would receive more favorable treatment in connection with the drug charges lodged against him.1
On July 26, 1977, Hall reported to the Michigan State Police Post at Negaunee, Michigan. He and his vehicle were searched. He was given three marked $20 bills. Dressed in civilian clothes, he proceeded to an off-base location, the site of a trailer occupied by defendant Patrick C. Burden and Burden’s friend, defendant Joyce Jones. He testified at defendants’ preliminary examinations that he entered, the trailer and purchased various drugs from defendants. According to Hall, he and *218defendant Burden had been partners in a drug sales operation earlier in 1977. Defendant Burden was at the time of the alleged sale of drugs a member of the Air Force stationed at Sawyer Air Force Base. Defendant Jones is a civilian.
Defendants’ motions to exclude Hall’s testimony were predicated on the alleged violation of the Posse Comitatus Act, 18 USC 1385, which provides:
"Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined not more than $10,000 or imprisoned not more than two years, or both.”2
In a careful and scholarly opinion the trial judge examined the cases which have dealt with the interpretation and application of the Posse Comitatus Act. He concluded that the use of Airman Hall, in investigating and obtaining evidence against defendants, was a direct violation of the act. The court also ruled that violation of the statute necessitated exclusion of Hall’s testimony from defendants’ trials.
The enactment of the Posse Comitatus Act in 1878 was primarily the result of southern outrage at the use of Federal troops in the South following the civil war. With the end of armed hostility *219between the North and South came a period of political domination by Northerners of their fellow citizens in the South. Large numbers of Federal troops were extensively used in the South to enforce the law and to support the new carpetbag governments. The Reconstruction Act of 1867 implemented Congressional belief that military rule was necessary in the southern states. It was the "outrageous meddling” of Federal troops in the 1876 presidential elections in the South which precipitated the proposal and passage of the act.3 The following remark made during Senate discussion of the proposed posse comitatus legislation is illustrative of the concern which underlay its introduction and ultimate passage:
"It would be an entire overthrow, it seems to me, of a fundamental principle of the laws of this country, of all our traditions, to say that the Army at the instance of the law officer, through a marshal or a deputy, special or general, of election, may call a body of the Army as a posse comitatus and order it about the polls of an election. We all know that that might be used for an entire overthrow of the rights of citizens at the polls.” 7 Congr Rec 4240 (1878) (remarks of Senator Kernan).
The principle reflected in the Posse Comitatus Act is one which is firmly and deeply rooted in the American constitutional system. The seeds of "the inherited antipathy of the American people to the use of troops for civil purposes”, Sparks, National Development 1877-1885, p 127, Vol. 23, The American Nation, A History, cited in Wrynn v United *220States, 200 F Supp 457, 465 (ED NY, 1961), were identified in 1776:
"The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object, the establishment of an absolute tyranny over these states. To prove this, let facts be submitted to a candid world.
"He has kept among us, in times of peace, standing armies without the consent of our legislatures.
"He has affected to render the military independent of, and superior to, the civil power.
"He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his assent to their acts of pretended legislation.
"For quartering large bodies of armed troops among us;
"For protecting them, by a mock trial, from punishment for any murders which they should commit on the inhabitants of these states.” Declaration of Independence.
Delegates to the original constitutional convention debated the need for a standing army. Concern was expressed over insuring civilian control over the military. Meeks, Illegal Law Enforcement: Aiding Civil Authorities in Violation of the Posse Comitatus Act, 70 Mil LR 83, 86-87 (1975). See US Const, art 1, § 8, clauses 12-14; US Const, Am III; Laird v Tatum, 408 US 1, 15-16; 92 S Ct 2318; 33 L Ed 2d 154 (1972).
I share with the trial judge the firm conviction that this fundamental tenet of our system of law— noninterference by the military in civilian affairs —is to be jealously guarded. The Posse Comitatus Act arose in a particular historical and political context but it is "not an anachronistic relic of an *221historical period the experience of which is irrelevant to the present”. Wrynn v United States, supra, at 465. It embodies the very important, pervasive, and continuing American preoccupation with assurance of the separation of civilian and military spheres of authority and the aversion to intrusion of the military into civilian matters.
Nevertheless, although I must commend the trial judge for his thoughtful and comprehensive discussion of the applicability of the Posse Comitatus Act, I find myself in disagreement with his resolution of the issue under the facts in this case.
The act prohibits execution of laws by use of "any part of the Army or the Air Force”.4 The remarks of certain senator who participated in the debate which preceded passage of the act give some indication of the intent of Congress in using this phrase.
"If a soldier sees a man assaulting me with a view to take my life, he is not going to stand by and see him do it, he comes to my relief not as a soldier, but as a human being, a man with a soul in his body, and as a citizen * * *. The soldier standing by would have inters posed if he had been a man, but not as a soldier. He could not have gone down in pursuance of the order of his colonel or captain, but he would have done it as a man.” 7 Congr Rec 4245 (1878) (remarks of Senator Merrimon).
"Of course there are occasions in all countries where under the laws it is the duty of every man to save life, to save property, to suppress crime. I care not whether he is a soldier or whether he is a citizen, whether a *222man or a woman * * *. But that is not the question involved here. * * * the point is in their character as an army.”5 7 Congr Rec 4247 (1878). (Remarks of Senator Hill.) (Emphasis added.)
The few commentators who have discussed the Posse Comitatus Act agree that it does not apply to military personnel performing in purely unofficial and individual capacities. Meeks, supra, at 126. The act "reaches the single soldier acting under color of authority”. Note, The Posse Comitatus Act: Reconstruction Politics Reconsidered, 13 Amer Crim LR 703, 721, fn 102 (1976). (Emphasis added.) Soldiers, however, do not lose their status as citizens, together with all privileges and duties involved in citizenship, by virtue of assuming military status. Id.
In three cases involving the use of soldiers from Fort Sill as undercover agents in the purchase of drugs, the Oklahoma Court of Criminal Appeals found no violation of the act. Hubert v State, 504 P2d 1245 (Okla Crim, 1972), Hildebrandt v State, 507 P2d 1323 (Okla Crim, 1973), Lee v State, 513 P2d 125 (Okla Crim, 1973), cert den 415 US 932; 94 S Ct 1445; 39 L Ed 2d 490 (1973). In each case, the court concluded that the undercover agents had assumed no greater authority than that of private citizens in purchasing the drugs. See, for example, Lee v State, supra, at 126, where the court observed that the agent had not attempted to assert any military authority over the defendant.
Without expressing an opinion as to the result *223reached in the Oklahoma cases,6 I nonetheless agree with the underlying premise that, when military personnel involve themselves in an activity which is unconnected to their military status but which involves only their status as private citizens, the Posse Comitatus Act does not apply.
Several cases involving the Posse Comitatus Act arose out of the so-called native American uprising in Wounded Knee, South Dakota, a village on the Pine Ridge Indian Reservation. Among those was United States v McArthur, 419 F Supp 186, 194 (ND, 1976), aff'd 541 F2d 1275 (CA 8, 1976), cert den sub nom Casper v United States, 430 US 970; 97 S Ct 1654; 52 L Ed 2d 362 (1977), where the Federal district court stated the issue to be: Whether "Army or Air Force personnel [were] used by the civilian law enforcement officers at Wounded Knee in such manner that the military personnel subjected the citizens to the exercise of military power which was regulatory, proscriptive, or compulsory in nature, either presently or prospectively”. (Emphasis added.)
While McArthur and the other Wounded Knee cases7 are distinguishable from the case at bar on their facts it is significant to note here the emphasis which the South Dakota Federal District Court placed on the necessity of demonstrating an exercise of military authority by those members of the military used to execute civilian laws if a violation of the Posse Comitatus Act was to be proven.
*224I find no violation of the act in this case. In cooperating with and assisting the civilian police agency, Hall was not acting as a member of the military. He was acting only as a civilian. His military status was merely incidental to and not essential to his involvement with the civilian authorities. He was not in military uniform. He was not acting under military orders. He did not exercise either explicitly or implicitly any military authority. Moreover, Hall was not a regular law enforcement agent of the military (see footnote 6, supra), nor does the record suggest that Hall’s usefulness to civilian authorities was in any way enhanced by virtue of his being a military man. As we read the record, the assistance rendered by Hall was in no way different from the cooperation which would have been given by a private citizen offered the same opportunity to avoid criminal prosecution. To paraphrase Senator Hill, Hall’s character as "part of the Army or the Air Force” was irrelevant to the assistance he rendered to the civilian authorities.
I would reverse the order excluding Hall’s testimony from defendants’ trials.
The record is not entirely clear as to how Hall’s cooperation would affect handling by the authorities of the drug charges against him. There is an indication that he was to be given immunity from prosecution by the local authorities and that he would not be considered a "High Risk” at that time for Air Force purposes.
Posse comitatus is defined as follows:
"The power or force of the county. The entire population of a county above the age of fifteen, which a sheriff may summon to his assistance in certain cases; as to aid him in keeping the peace, in pursuing and arresting felons, etc. 1 Bl. Comm. 343; Com. v Martin, 7 Pa. Dist. R. 224.” Black’s Law Dictionary (4th ed).
Michigan recognizes this common-law power inherent in the office of sheriff and has extended it to deputy sheriffs, coroners and constables. MCL 600.584-600.585; MSA 27A.584-27A.585, MCL 764.16(c); MSA 28.875(c).
Furman, Restrictions Upon Use of the Army Imposed by the Posse Comitatus Act, 7 Mil L Rev 85, 94-95 (1960). More detailed discussions of the events surrounding proposal and'passage of the Posse Comitatus Act can be found in Meeks, Illegal Law Enforcement: Aiding Civil Authorities in Violation of The Posse Comitatus Act, 70 Mil L Rev 83, 86-92 (1975), and Note, The Posse Comitatus Act: Reconstruction Politics Reconsidered, 13 Amer Crim L Rev 703, 704-707 (1976).
I emphasize that our present discussion of the issue is strictly limited to the facts before me. In addition, I treat only one element of the offense described in the Posse Comitatus Act and express no opinion as to the possibility of defenses based on the remaining elements. Under appropriate circumstances, for example, the "except in cases and under circumstances expressly authorized by the Constitution or Act of Congress” language may be successfully invoked.
The original version of the act, which was part of an Army-appropriation bill, referred only to the Army. Reference to the Air Force as a separate entity was added in 1956. See United States v Walden, 490 F2d 372, 375, fn 5 (CA 4, 1974).
These three Oklahoma cases have been criticized, one commentator noting that the undercover agents were Criminal Investigation Division agents who were merely engaging in their primary military occupation as criminal investigators and routinely and systematically aiding civilian law enforcement officials. Meeks, supra, at 112-113. For futher criticism, see 13 Amer Crim L R, supra, at 720-723.
The other Wounded Knee cases are United States v Jaramillo, 380 F Supp 1375 Neb, 1974), app dis’d 510 F2d 808 (CA 8, 1975), United States v Banks, 383 F Supp 368 (SD, 1974) app dis’d 513 F2d 1329 (CA 8, 1975), United States v Red Feather, 392 F Supp 916 (SD, 1975).