(dissenting).
I respectfully dissent. The majority has broadly construed our forfeiture law elevating the state’s claim to ownership of derivative contraband above the rights of innocent third persons who have no connection with a violation of the controlled substance laws. In this case, a divorced wife of the defendant is deprived of her right to collect past due child support under a valid judgment by the state’s claim to cash seized from defendant in a drug raid. The reason approved by the majority is that the police took possession of defendant’s cash before she could garnish it to pay the money owed for child support.
The majority makes reference to our principles that forfeiture statutes are not penal in nature and must be strictly construed. Its analysis, however, proceeds without any reasoning based on strict construction but instead rests on a perceived legislative intent to give the state ownership rights above all other persons from the moment it seizes defendant’s cash. The embracing of the doctrine of “relation back” for support is a startling example of losing track of these guiding principles.
Forfeiture proceedings are commenced when a notice of forfeiture is filed by the county attorney or attorney general. Iowa Code § 809.8. Until then the state possesses seized property but has not asserted a claim of forfeiture under law. Even after the state claims the property by a notice of forfeiture, the legislature has clearly made the state’s claim subject to divestment by further court proceedings.
A hearing must be held to decide the priority of other claims to the property and for return of the property, if demanded. Iowa Code § 809.9. Title is finalized in the state only by a court’s finding that the property is forfeitable, which is reviewable on appeal. Iowa Code §§ 809.11 and 809.-12.
Section 809.10(3) provides: “Upon a finding by the court that the property is forfei-table, the court may as a matter of equity enter an order transferring title in the property to the state.” The legislature recognizes by this statute that equitable prin*165ciples are important even in forfeiture proceedings and that the proceedings for forfeiture are completed only upon a finding by the court that the property is forfeita-ble.
Section 809.14 sets out rights of lienhold-ers. Subsection three of 809.14 states: “The validity of a lien or property interest is determined as of the date upon which property becomes forfeitable.” I believe a proper construction of section 809.14 is that the property “becomes forfeitable” when the county attorney or attorney general claims it by filing a notice of forfeiture. Iowa Code § 809.8. Since Stacy established her lien through the garnishment proceedings prior to the filing of the notice of forfeiture, the lien should be deemed valid and superior to the state’s right to the money. This construction carries out the purpose of the forfeiture statutes, protects the rights of innocent persons and is faithful to our principles of statutory construction.
The majority’s construction of section 809.6 rivets attention on the words “rests in the state at the time of seizure” but fails to consider the words “forfeitable property” in the same sentence. “Forfeitable property” is such when a notice of forfeiture is filed; until then it has not been legally declared forfeitable by any authority; it has merely been seized and lawfully possessed by the state subject to a decision by the county attorney or attorney general to petition the court for its forfeiture. The majority’s construction changes the statutory language in section 809.6 from “forfei-table property” to “forfeited property.”
Section 809.6 has a readily discernible purpose that promotes the destruction of illegal drug trafficking that has been a scourge on our society. That purpose is to prevent the alleged seller of illegal drugs from transferring title to the seized property and thereby defeating the state’s claim. Clearly, section 809.6 is designed to insure that neither convicted criminals nor their would-be donees profit from ill-gotten wealth. The statute prevents a transfer “by anyone” not “to anyone” other than the state. This laudable policy does not, however, apply to the wrongdoer’s legitimate, preseizure creditors. No reference is made in section 809.6 to innocent third persons, nor were their rights intended to be scuttled. As against these individuals, the state’s claim to the confiscated wealth is clearly subordinate.
Not incognizant of these equities, the legislature has vested title to forfeitable property as against the defendant in the state as of the time of physical seizure. However, the statute also provides that this title may thereafter be transferred by the state. One such mode of transfer would necessarily include garnishment. These state transfers effected by the judiciary would deny criminals the fruits of their misdeeds, while at the same time allow worthy creditors to satisfy their judgments.
In the case at bar, Stacy attempted to collect her child support by execution and garnishment of the cash held by the police on January 31, 1990. The state did not commence forfeiture proceedings until March 9, 1990. Not until March 9, 1990, did the state declare the cash “forfeitable property.” Stacy’s claim and legal right to the cash was clearly superior to that of the state’s, which is supported only by its right of possession.
The trial court was correct in its careful analysis of our forfeiture law and should be affirmed.