concurring and dissenting:
I concur in the majority’s excellent analysis of the probable cause issue and, indeed, in all of the opinion except for its last two sentences. I dissent only from the majority’s failure to consider the claimants’ argument that the forfeiture violated the excessive fines clause of the Eighth Amendment.
When one issue is dispositive of an appeal, it is not necessary to reach alternative arguments that might be equally dispositive. That is the rule that the majority purports to apply. In this ease, however, while the result the majority reaches is to order a remand for further examination of the probable cause question on the basis of additional evidence to be introduced by the government, the issue it refuses to decide has the potential for ending the litigation now. Where such a potential exists, it is unfair to the parties and a waste of judicial resources to order a remand for further district court proceedings that may subsequently result in an unnecessary and time-consuming second appeal.
Here, if we were to rule for the claimants on the merits of their Eighth Amendment argument, the matter would be ended. True, we might rule against them or might even remand for a factual examination by the district court. However, without addressing the question on the merits, we cannot say which result we would reach and therefore cannot know whether we could have disposed of the case finally on this appeal. In my view, if we could, we are obligated to do so.
I believe that my colleagues would agree with me wholeheartedly if this were a criminal case. Were there an argument advanced by a defendant that, if accepted, would result in the permanent dismissal of the criminal charges against him and render further proceedings in the district court unnecessary, we would not remand for further proceedings in the district court on some other argument and refuse to consider what might be the dispositive question. The same should certainly be true in a forfeiture proceeding, particularly where property that deteriorates in usefulness and economic value, such as planes, boats, and cars, is involved and the seizure occurred over eight years earlier.
Because the majority has determined that it will not reach the Eighth Amendment issue, I see little purpose to my doing so. Nevertheless, to emphasize the point that my concern is a jurisprudential one, I might just note for the record that it appears to me that were we to reach the Eighth Amendment claim we would be required to reject it.