concurring.
For better or for worse, it has become increasingly difficult to impose any principled constraints on the exercise of forfeiture powers under the drug laws. But see United States v. 92 Buena Vista Avenue, — U.S. —, 113 S.Ct. 1126, 122 L.Ed.2d 469 (1993) (innocent owner defense available to purchaser of house who was given the purchase money as a gift, not knowing that the proceeds derived from narcotics trafficking); Austin v. United States, — U.S.—, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993) (Eighth Amendment’s excessive fines clause applies to drug forfeitures). My guess is that Congress, in subjecting to forfeiture all “conveyances” used “in any manner to facilitate the transportation, receipt, possession or concealment” of drugs, 21 U.S.C. § 881(a)(4), originally intended the forfeiture of vehicles used for the actual transportation of drugs. For example, the House Committee Report accompanying the original Section 881 indicated that “all conveyances used, or intended for use, to transport or conceal such violative property” would be “subject to forfeiture.” H.R.Rep. No. 1444, 91st Cong., 2d Sess., reprinted in 1970 U.S.Code Cong. & Admin.News 4566, 4623. On this view, “the conveyance could only be forfeit when used or intended for use in transporting or storing the illegal drugs.” James B. Speta, Note, Narrowing the Scope of Civil Drug Forfeiture: Section 881, Substantial Connection and the Eighth Amendment, 89 Mich.L.Rev. 165, 176 (1990). Thus, “an automobile which drug dealers used for transportation to negotiations would not be forfeitable.” Id. See also United States Department of Justice, Criminal Division, Asset Forfeiture Office, Asset Forfeiture: Compilation of Civil Statutes 211-13 (1987) (“Section 881(a)(4) allows the forfeiture of any conveyance used to *655transport any controlled substance that has been unlawfully manufactured, distributed, dispensed or acquired_ [T]he more remote the connection between the conveyance and the illegal activity, the less likely it is that the property is subject to forfeiture.”).
But despite all of this, for some time now the statute has been extended to vehicles used to transport participants to the scene of drug transactions, even when the vehicles neither carried nor concealed any drugs. See United States v. Fleming, 677 F.2d 602 (7th Cir.1982). See also United States v. One 1989 Stratford Fairmont, 986 F.2d 177, 179 (7th Cir.1993) (suggesting that “semitrailers, Indy cars, tanks, chariots, buggies, snowmobiles, riding lawn mowers and entries in a Soapbox Derby” are all “conveyances” subject to forfeiture under § 881(a)(4)). Today we conclude that Section 881 reaches vehicles used to take (or, more precisely, where there is probable cause to believe that the vehicle is used to take) conspirators to meetings where prospective drug deals will be discussed. Unless the Supreme Court interprets § 881 to require some closer and clearer nexus between the drug transaction and the forfeited property, I suppose the next case will be an automobile carrying two drug dealers to a vacation in the mountains with the dealers carrying on a conversation about the prospects for drug transactions as they speed down the highway. After that perhaps one drug dealer driving alone thinking about drugs will be enough. In fact, when asked about this possibility at oral argument, the Assistant United States Attorney suggested that the only difficulty presented by this scenario would be evidentiary: “When you are dealing with thought processes, I’m not exactly sure how the United States would be able to prove such a case.”
All this may be to the good, for, as the majority notes, it involves the confiscation of the tools of the nefarious drug trade. The majority also suggests that these seizures will curtail drug trafficking. Hopefully, this will be the case although hard evidence will be exceedingly difficult to come by. The seizures do appear, at any rate, to help cover the costs of carrying on the War on Drugs. See United States Department of Justice, Annual Report of the Department of Justice Asset-Forfeiture Program 31 (1990) (during fiscal year 1990 the Justice Department Asset Forfeiture Fund received deposits of $460 million from federal forfeiture statutes) (cited in Brief for the United States, Austin v. United States, — U.S.—, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993)).
But with respect to the line being drawn today, I am afraid I am skeptical of any durable distinction between “business” and “personal” use of vehicles by drug dealers. Even on vacation or going to the movies, dealers may be on the lookout for business. In separating the “business” from the “personal”, I imagine that today’s decision suggests a drug dealer’s car is subject to forfeiture if its use relates in an “ordinary and necessary” way to the drug venture. This is hardly a bright line rule, for at least in deciphering the tax code, we have learned that this language can be slippery. Compare 28 U.S.C. § 162; Welch v. Helvering, 290 U.S. 111, 114, 54 S.Ct. 8, 9, 78 L.Ed. 212 (1933) (Cardozo, J.) (“ordinary” means “common and accepted” in “the life of the group, the community” of which the individual “is a part”); Meiers v. Commissioner of Internal Revenue, 782 F.2d 75 (7th Cir.1986) (per curiam) (allowing a deduction for a home office even where that office is not the “focal point” of the business).
The problem of properly defining the scope of the forfeiture laws is a serious one not so much as it relates specifically to the narcotics trade but as it may impact upon the administration of the criminal law in general. In modem times, forfeiture has not played a prominent role in our criminal jurisprudence. See 92 Buena Vista, — U.S. at-, 113 S.Ct. at 1133 (describing the modern evolution of forfeiture laws as “an important expansion of governmental power”). There seem to have been good reasons for this, notably a concern about the completely arbitrary exercise of government power. By decisions such as the one today, for better or for worse, we are changing the traditional course of our law.