Don't buy an iPhone prototype.

[stephengilbert]

As a California criminal lawyer who's read and heard of many instances of outrageous governmental conduct, even I find this surprising. Police executed a search warrant at the home/office of the Gizmodo editor who wrote of the next gen iPhone found in a bar. (http://gizmodo.com/5524843/police-seize-jason-chens-computers)

You'd like to think that the Fourth Amendment's requirement that a neutral and detached magistrate stand between us and overzealous police officers and Apple CEOs would have prevented this, but apparently that's not the case in San Mateo County.

I wonder if the Apple employee who lost the iPhone is still alive?

 

[Vivek]

I saw that earlier and was shocked to read what had actually happened.:shocked:

Perhaps they reopened Alcatraz to lock up the people involved in the leak?

 

[Diane B]

While I was waiting in a line awhile ago I heard that Gizmodo's lawyer is going to use the defense of Chen being a journalist who is protected under CA law.

 

[stephengilbert]

Defense to what? Chen hasn't been charged with a crime, and likely didn't commit one. Yet they broke into his house and seized his computers. The only thing likely to be discovered by the search is his writings or photos, neither of which should be subject to seizure.

I guess it's trite to remind people of Apple's famous 1984 commercial. Who's Big Brother now?

 

[Diane B]

I might have used the wrong word--but as I understood it, they are saying that he cannot be charged because he is a journalist and they are protected under CA law.

I did go back and look at that commercial the other day though.

Is there also not a CA law that says something to effect that if you accept stolen or lost property and don't return it you are essentially having or keeping stolen property--and the fact that he then sold it---I don't know--I'm getting in too deep here, but they (Apple I guess) is citing that particular CA law from what I read.

Apple is way out of line here IMO---but if there is a law that they can use I expect they will use it.

 

[stephengilbert]

California Penal Code section 496 prohibits the knowing receipt of stolen property: "(a) Every person who buys or receives any property that has been stolen or that has been obtained in any manner constituting theft or extortion, knowing the property to be so stolen or obtained, or who conceals, sells, withholds, or aids in concealing, selling, or withholding any property from the owner, knowing the property to be so stolen or obtained, shall be punished by imprisonment in a state prison [for up to three years], or in a county jail for not more than one year."

The property wasn't stolen at all, wasn't received with knowledge that it was stolen, wasn't concealed, sold, or withheld by Gizmodo. Plus, I doubt that there was ever been a search warrant seeking evidence of a violation of section 496 unless the suspect was believed to be in the business of dealing in stolen property. The warrant and affidavit I saw on Gizmodo doesn't seem to state what crime the officers were allegedly investigating. I'd like to know.

 

[kevinparis]

Apple have nothing to do with this - this is a criminal investigation. Apple may later take civil action, but i somehow doubt it

Gizmodo openly admitted that they purchased from an unknown third party an object that had been found in a bar.

Despite the fact that this person seemed to have known who the owner of this phone was, they did not seem to have made the appropriate efforts to return it - by keeping it and selling it it became stolen under californian law. Gizmodo then paid to take possession of the 'stolen' phone, thus committing a felony.

Just because the editor is a journalist doesn't allow him to commit a crime and get away with it

This subject is being discussed endlessly on all the mac forums and all the major press

bottom line.... this is not Apple doing this.... its the law

peace

 

[stephengilbert]

"Found in a bar" does not equal "stolen." I don't know whether Apple had anything to do with the search, but neither do you. The notion that police engage in large scale investigations of misplaced cell phones is contrary to my experience of police practice, but I'm just a lawyer, so I might not be as well informed as others.

 

[kevinparis]

stand corrected on one point

http://sanjose.bizjournals.com/sanjose/stories/2010/04/26/daily36.html

K

 

[Terry]

I agree with Kevin here.

I think there is zero possibility that Gizmodo didn't know that a real iPhone out in the wild was not intended by Apple and was "hot" propery (pick your own meaning they all work).

It doesn't take a genius to realize the phone is either stolen and was lost. The legal advice they should have sought is exactly what Stephen quoted What is the penal code for obtaining this property.

 

[stephengilbert]

I hate to be lawyerlike, but this is a legal issue. "Stolen" has a legal meaning in the law, and however you feel about Gizmodo, acquiring something that a person offers to you is not a crime unless that something is stolen, and you know or should know so. The phone wasn't stolen. The criminal law imposes no duty to track down the true owner and return his property. It may well be that Apple can sue Gizmodo in civil court for some sort of privacy invasion, but the police conducting the raid at issue here is just wrong.

 

[DougDolde]

I agree !

I hate to be lawyerlike, but this is a legal issue. "Stolen" has a legal meaning in the law, and however you feel about Gizmodo, acquiring something that a person offers to you is not a crime unless that something is stolen, and you know or should know so. The phone wasn't stolen. The criminal law imposes no duty to track down the true owner and return his property. It may well be that Apple can sue Gizmodo in civil court for some sort of privacy invasion, but the police conducting the raid at issue here is just wrong.

 

[kevinparis]

not wanting to impinge on your superior legal knowledge..

but John Gruber of Daringfireball.net in his coverage of the whole thing cites this

http://codes.lp.findlaw.com/cacode/PEN/3/1/13/5/s485

One who finds lost property under circumstances which give him knowledge of or means of inquiry as to the true owner, and who appropriates such property to his own use, or to the use of another person not entitled thereto, without first making reasonable and just efforts to find the owner and to restore the property to him, is guilty of theft.

I'm not a lwyer... but that looks like a law


K

 

[Terry]

I hate to be lawyerlike, but this is a legal issue. "Stolen" has a legal meaning in the law, and however you feel about Gizmodo, acquiring something that a person offers to you is not a crime unless that something is stolen, and you know or should know so. The phone wasn't stolen. The criminal law imposes no duty to track down the true owner and return his property. It may well be that Apple can sue Gizmodo in civil court for some sort of privacy invasion, but the police conducting the raid at issue here is just wrong.

I thought there was more to the definition of what can be considered stolen (actually Kevin just cited the bit that I had read earlier in the week). So, if it wasn't stolen, who did Gizmodo think owned the property? They guy selling it? If it was found, don't you generally give it to the bartender, store owner etc. Don't you answer it when it rings and the person is trying to find it? Reports were the person who lost it called it repeatedly before it was bricked? Gizmodo knew the facebook information from person who lost it.

 

[Vivek]

One who finds lost property under circumstances which give him knowledge of or means of inquiry as to the true owner, and who appropriates such property to his own use, or to the use of another person not entitled thereto, without first making reasonable and just efforts to find the owner and to restore the property to him, is guilty of theft.

I'm not a lwyer... but that looks like a law


K

If anyone finds an iPAD, should they call SteveJ to turn it in?

Guilty of theft? No charges and is already a "guilty" verdict, K?:shocked:

 

[Guy Mancuso]

What kills me is the time and money wasted not to mention California being broke that is going into a PHONE. How about taking all that money and donating it to some worthy charity instead or better yet round up a few more drug dealers and mass murderers. I understand that may make to much sense and not how things really work.:wtf:

 

[Diane B]

But the Ipad is out there in the world already but obviously the person finding this phone must have determined it was more than the Iphone anyone can buy or they wouldn't have called Gizmodo and others. They had determined it was valuable and "special" above and beyond just someone's lost Iphone. They intended to make money from something that was not theirs unless "finders' keepers" is acceptable.

 

[Vivek]

If it was really an "i"Phone it would have called the rightful owners when it was misplaced or would have self destructed when alien hands touched them.:ROTFL:

 

[Terry]

would have self destructed when alien hands touched them.:ROTFL:

It did when the "finder" woke up the next morning, it was remotely wiped and since it wasn't using the "norma" firmware it couldn't be restored to working order. Sorry it wasn't a physical self destruction a la "Mission Impossible"

 

[Vivek]

It got wiped (by the person who lost it) not that it wiped itself.