dissenting:

The majority opinion all but concedes that its holding contradicts the law of this circuit which mandates that the exclusionary rule apply where illegally seized evidence is proffered to show prior bad acts. The opinion also contravenes express provisions of the Federal Rules of Evidence. The majority justifies its departure from these authorities either by attempted factual distinctions that are wholly unpersuasive or by arguments that have been expressly rejected by the draftsmen of the Federal Rules of Evidence. For these reasons, I respectfully dissent.

The majority must agree that Batts did not open the subject of his previous drug use. He briefly testified about his residence, education, and background, as will any defendant who takes the stand. Of necessity he then related the events at the customs station on the day of his arrest. The prosecution knew that Batts had been arrested on cocaine charges seven months before the incident at bar. On cross-examination the prosecution sought to find an opening by which it might introduce into evidence the defendant’s prior bad acts. It took great pains to question Batts about the cocaine spoon he was wearing when he was arrested. The prosecution’s obvious purpose in asking the defendant about the cocaine spoon was to invite Batts to deny any knowledge of cocaine, so that the damaging evidence of his earlier cocaine dealings might be brought to the jury’s attention. By using this tactic, the prosecution introduced extrinsic evidence in rebuttal. The Government called an undercover agent who testified at length concerning his purchase of cocaine from Batts. It also introduced three clear plastic bags of cocaine that had been seized in violation of the fourth amendment at the time of Batts’ arrest following the cocaine sale.

In United States v. Trejo, 501 F.2d 138 (9th Cir. 1974), this court considered the applicability of the exclusionary rule where illegally seized evidence is offered to show prior criminal conduct. In Trejo , after examining the relevant decisions of the Supreme Court on the issue, we held that the controlling distinction in deciding whether illegally seized evidence may be admitted for impeachment purposes is whether the subject of prior criminal conduct is opened by the defendant in his direct testimony or instead by the prosecution on cross-examination. We held that illegally seized evidence may not be admitted where the prosecution opens the line of inquiry. As stated in Trejo: “[S]ince the offered evidence does not focus on the truthfulness of [the] defendant’s direct testimony, we hold its introduction into evidence to be error.” 501 F.2d at 145 .

The Trejo rule controls the instant case. The illegally seized evidence introduced in rebuttal did not focus on the truthfulness of Batts’ direct testimony. As in Trejo , the defendant’s protestations of innocence during his direct examination were limited to a general denial of the crime for which he was charged. The defense carefully avoided raising on direct the issue of Batts’ previous experience with drugs. The relevance of the illegally-seized evidence for impeachment purposes is confined to the answers Batts gave to questions put to him by the prosecution on cross-examination. Since Batts did not testify on the subject of his prior conduct during his direct examination (or voluntarily raise it on cross-examination), it was error to allow the illegally seized cocaine into evidence. 1

*520 The majority’s treatment of United States v. Trejo is unconvincing. Fed.R. Evid. 404(b), which permits the introduction of evidence of prior bad acts to prove motive or knowledge in a proper case, is merely a statement of the rules controlling the admissibility of prior conduct for specific purposes. It has nothing whatever to do with whether or not illegally seized evidence is subject to the operation of the exclusionary rule. I fail to see how the Federal Rules of Evidence may take precedence over a rule of constitutional dimension. Furthermore, application of the Rules of Evidence would be far too complex if we were to use them as ad hoc justifications for altering settled principles of constitutional interpretation to which they do not directly pertain. Finally, if the Trejo case were wrongly decided, as the majority hints that it was, then the holding of that case can be reversed only by our en banc reconsideration of the principles established therein.

The majority’s second proffered rationale for admitting the rebuttal evidence, the claim that it constituted proper impeachment under Fed.R.Evid. 608(b), is contrary to the express terms of that rule. Rule 608(b) explicitly provides: “Specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, other than conviction of crime as provided in rule 609, may not be proved by extrinsic evidence.” The rule codifies conventional practice which has evolved since the early eighteenth century. See 3A Wig-more, Evidence § 979 (Chadbourn rev. 1970); E. Morgan, Basic Problems of Evidence 73 (1962); Hale, Specific Acts and Related Matters as Affecting Credibility, 1 Hastings L.J. 89 (1950). Rule 608(b) has been applied unequivocally by this and other circuits. 2

The majority holds that the trial judge properly exercised his discretion in admitting the rebuttal evidence so the case would not go to the jury under a “false light.” What the court ignores is that the Federal Rules specifically provide only two exceptions to the “no extrinsic evidence” rule, neither of which permit extrinsic evidence of prior bad acts to impeach in these circumstances. Specific instances of conduct to support or impeach credibility are first provable when they have been the subject of criminal conviction, as provided in rule 609. Second, specific instances may be inquired into on cross-examination of the witness himself, in the discretion of the court, “if probative of truthfulness or untruthfulness . . . (1) concerning his character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.” Fed.R.Evid. 608(b).

The legislative history of rules 608(b) and 609 indicates that Congress considered the balance between the importance of ascertaining the truth and the dangers of undue prejudice and that it designed these provisions carefully to provide these two exceptions to the rule, but no others. 3 The discretion of trial judges to admit evidence of specific instances of conduct to impeach or support credibility was intended to be confined to these exceptions.

The legislative history of rule 608(b) cited in the majority opinion does not support the majority’s conclusions. Considerable dis *521 cussion in formulating the rules centered around the scope of cross-examination as to specific instances of conduct. It is instructive to note that while there were differences of opinion as to how broad the discretion of the trial court should be in permitting such cross-examination, 4 all of the participants in the debate took for granted that a cross-examiner must accept the answers he receives about specific instances relating to credibility and that he could not introduce extrinsic evidence of those matters. 5 This general understanding of rule 608(b) was succinctly expressed by Professor Cleary, the reporter of the Advisory Committee on Federal Rules of Evidence, in a statement to the House of Representatives during its hearing on the rules. Professor Cleary reported:

Federal Rules of Evidence: Hearings on H.R. 5463 Before the Special Subcommittee on Reform of Federal Criminal Laws of the Committee on the Judiciary, House of Representatives, 93d Cong., 2d Sess. 96 (1973), reprinted in 20 U.S.Sup.Ct. Digest 239, 256 (1975) (emphasis added).

In support of its interpretation of rule 608(b) the majority quotes from a letter by Senator McClellan to the Committee on Rules of Practice and Procedure and from Judge Weinstein’s treatise on evidence. 3 Weinstein’s Evidence HI 608[02] at 608-16, 608[05] at 608-24 (1975). The majority mis-perceives the type of discretion being discussed in those explanations. Both Senator McClellan’s letter and the passage quoted from the treatise address the factors that the trial court is allowed to and should consider in the exercise of its statutory discretion to allow inquiry about specific instances of conduct during cross-examination of the witness himself. This is hardly support for the proposition that the court has discretion to. override the limitations of rule 608(b) by an ad hoc and vaguely defined exception.

While the notes of the Advisory Committee on the Federal Rules make clear that some of the rules are ones of general import that can be applied with considerable flexibility, see, e. g., Notes to Federal Rules of Evidence 404(b), 611, the Committee’s com *522 ments indicate that there is no discretion to ignore the specific language of the first sentence of rule 608(b). The comments identify no exception to the general rule except as stated in the rule itself. And Judge Weinstein notes that: “Rule 608(b) is intended to be restrictive — and was amended to ensure that it would be restrictively interpreted by trial courts . . . 3 Weinstein, supra, ¶ 608[05], at 608-28. 6

Finally, even assuming that some exception could be made to rule 608(b), the court’s appeal to the general principles of rule 102 has no merit. Where the prosecution declined to use the very device provided by the rule to allow some inquiry into prior conduct for impeachment purposes— the right to cross-examine Batts about his prior drug dealings — there is no justification for a court-created exception to rule 608(b). The prosecution chose not to press Batts about his denial of any knowledge about cocaine. Instead it waited until the end of the trial. Then the Government introduced a police detective who narrated the prior cocaine arrest in great detail, and in conclusion it introduced three plastic bags of cocaine. The effect of this on the jury was obviously overwhelming.

Thus, even if the majority’s interpretation of the interplay of rules 608(b) and 102 were correct, I still could not agree that we should distort the rule where the prosecution manifestly failed to use it properly. And, if the evidence were properly admissible under rule 404(b), as the majority contends, the necessity for creating this new exception to rule 608(b), vanishes completely-

For these reasons, I would reverse the conviction.

. The factual setting of the issues before us is strikingly similar to that in Agnello v. United States, 269 U.S. 20 , 46 S.Ct. 4 , 70 L.Ed. 145 (1925), on which our decision in United States v. Trejo is predicated. In Agnello the defendant had been tried for drug-related offenses. *520 At the time of his arrest, he was carrying packages containing cocaine on his person. On direct examination Agnello testified he did not know the packages contained cocaine and that he would not have been carrying them had he known of their contents. On cross-examination, the defendant stated he had never seen narcotics. The Supreme Court ruled that the trial court committed reversible error in allowing the prosecution to introduce into evidence a can of cocaine illegally seized from Agnello’s house. Agnello v. United States, 269 U.S. at 35 , 46 S.Ct. at 7 .

. United States v. Wood, 550 F.2d 435, 441 (9th Cir. 1976); United States v. Edwards, 549 F.2d 362, 367-68 (5th Cir. 1977); United States v. Cluck, 544 F.2d 195 (5th Cir. 1976); United States v. Estell, 539 F.2d 697 (10th Cir. 1976).

. For an extensive and careful discussion of the legislative background of rule 609, see United States v. Smith, 551 F.2d 348 (D.C.Cir.1976), and references therein.

. As originally drafted in 1969, the rule allowed a trial court the discretion to permit cross-examination if the incidents were “relevant to truthfulness or untruthfulness.” There were objections that the rule as drafted was too broad and presented serious potential for abuse. See, e. g., Objections of Professor Brook to the Advisory Committee on proposed rule 608, quoted in 3 Weinstein’s Evidence fl 608[02] at 608-13. The words “relevant to” were stricken from the rule and were replaced in the March 1971 draft by the words “clearly probative of.” There was controversy over these changes also. The Committee on Trial Practice and Technique of the Second Circuit believed the allowable scope of cross-examination under the rule was too broad. The Department of Justice and Senator McClellan, on the other hand, were of the opinion that the rule was too restrictive. 3 Weinstein, supra, H 608[02] at 608-14.

. Commenting on the March 1971 draft, the Department of Justice, which advocated a broad rule, noted:

Report 42-43 (1971), reprinted in part in 3 Weinstein’s Evidence fl 608[02] at 608-15 (emphasis added and citations omitted).

. In its attempt to distinguish Trejo , the majority intimates that the rule announced in that case is the product of rigid principles that have been replaced by more malleable and flexible federal rules. But the Federal Rules of Evidence are more rigid than the rules evolved at common law on the issues before us. Before the enactment of the Federal Rules, we permitted extrinsic evidence on rebuttal to prove the falsity of a witness’ statement on direct. White v. United States, 317 F.2d 231 (9th Cir. 1963) and Ferrari v. United States, 244 F.2d 132, 140 (9th Cir. 1957), both citing Walder v. United States, 347 U.S. 62 , 74 S.Ct. 354 , 98 L.Ed. 503 (1954); Brady v. United States, 148 F.2d 394, 395 (9th Cir. 1945). In light of the express dictates of rule 608(b), this common law rule of evidence has no continued vitality in the federal courts.