If you find anything of a $100 value or more (and an iPhone clearly would fall into that category, a prototype even more so) and you know the owner then you should return it to him. If you do not know the owner, you give it to the police or county sheriff who will attempt to return it to the owner. See California penal code section 485:L and California civil code section 2080.

Simply by taking charge of the phone (which he is not required to do) the finder he accepted the obligation to act as a depositary for the owner, and to return the item to the owner at no charge. Legally, he is a depository for hire with all the legal obligations that entails. Attempting to return the phone to Apple and being rebuffed doesn’t excuse the finder of his duty to pass the item to the police, and it certainly doesn’t allow the finder to appropriate the item for his own use. Based on the published reports of the actions by the finder, there appears to a good case for a felony conviction for grand theft as the item exceeded $400 in value.

The case is only bolstered by the finder accepting a substantial amount of money (reports say $5,000) for the phone, and reports from other web sites that the finder attempted to sell the phone to them.

With regards to the journalist, California penal code section 496 requires people purchasing goods (for example, at a swap meet) to make inquiry to ascertain that the goods are not stolen, if the value of the transaction exceeds $900. Read the statute for more details. Did the journalist do this? If he didn’t, he’s still guilty of accepting stolen goods.

The journalist shield laws are a red herring. They were enacted to protect a source, not to protect a journalist from his own actions. They protect a journalist from a contempt subpoena for failing disclose the identity of a source. They do not protect a journalist against service of a search warrant to determine the legality of his own actions.

The time of day is also a red herring. The warrant is served prior to the search – 9:45PM was an appropriate time to serve the warrant, and the search may take as long as necessary after service.

btw, I’m a retired police officer. Been there, done that.

d: I’m not sure what kind of duty you would want a court to impose on a person as a returner of lost property. A reasonably diligent effort perhaps. Compare the person who walks up to a single representative at an apple store location and the person says: “here I want to return this,” holding up the phone with the person who calls multiple representatives saying: I have this wonky phone that doesn’t look natural but works. Please take it back.

The discussion of duty to return has been absolutely absurd. First, just because the phone has an Apple logo on it does not mean that it was Apple’s property. In fact, a part of the problem is that the “finder” called Apple several times and no one at Apple ever acknowledged that it was their property. He tried to identify the phone’s “owner” by internal information–and appears to have done so–but the information was “wiped out remotely”, apparently by someone at Apple who did realize that the phone was missing.

There is some conflicting information coming from the “finder”. The Wired story now says that the phone was never “sold” to Gizmodo, but was essentially rented for exclusive use. I’ve mentioned earlier–although maybe not here–that it was easy for the “finder” to claim that he made an effort to find the owner but did not have the resources so he went to a blogger who had the resources to do a better job of it. In fact, this is exactly what the “finder” and Gizmodo are now claiming.

Unless the finder was, in fact, a pickpocket, no one will be prosecuted in this case and Apple, once again, will come across as a big bully towards its biggest fans–kind of like Paramount telling trekkie fan sites to seize and desist.

There is another possibility. Faced with Microsoft-like missed deadlines, Apple people decided to generate some excitement and publicity from speculations about the new product coming down the line. It is possible that the employee (Palmer) was just careless and dropped the phone at the bar while test-riding the prototype. It is also possible that the phone was intentionally planted in a tech-savvy area to be discovered. But once someone at Apple, perhaps unaware of the plant, started a formal investigation, no one was going to stop it out of fear of embarrassment should the “plant” story come out. So they let the investigation proceed vigorously, knowing full well that it would not get anywhere.

This is a mere speculation. I am not claiming the “plant” story as fact, just as a distant possibility. But anyone who is having a knee-jerk reaction and siding with law enforcement because Chen is a “jerk” and “not a real journalist” is an idiot. No one would hold it against you if you simply stated the latter as your opinion. But to go so far as to justify a flimsy search warrant based on that opinion is stupid, especially considering that facts that are coming out completely contradict this version of the story. If you assume that the “finder” and the blogger are lying, you have no choice but to admit that Apple may be lying too.

Some people here are always too happy to accuse someone they don’t like of crimes or just plain nefarious intent without knowing the law or caring about the law and the facts. Given that this is an academic law blog, this is really not a good place to hold that exercise. There are plenty of storm-trooper blogs you can express your opinion on. Such idiocy would be welcomed by Althouse commentors, for example, with open arms. Of course, this has not been helped by newbies Baker and Anderson who have made outrageous unsupported claims in their posts, or a couple of other regulars who sometimes just sound batshit crazy. But, for the most part, the main Conspirators are a measured rational bunch who have a right to expect their readers to behave in the same manner. It’s disappointing that these expectations are not being met.

Matt: pc says:
It seems disputable that a reasonable attempt was made to return it.Surely, a reasonable person would realize that the low level customer support representatives of a multinational corporation would not be the best people to talk to, as they would have no information about secret prototypes.And after that effort failed, wouldn’t a reasonable person try to contact someone higher up in the pecking order, maybe the manager of an Apple store, or take it or mail it directly to Apple HQ in Cupertino which is not that far away?But before any of that, wouldn’t it make sense to take it to the bar where it was lost?From what I read, the employee who lost it repeatedly contacted the bar asking about it, to no avail.The finder’s “effort” seems like the most perfunctory, CYA attempt which he knew wouldn’t work, to give him the excuse to sell it.

I’m not sure what kind of duty you would want a court to impose on a person as a returner of lost property. A reasonably diligent effort perhaps. Compare the person who walks up to a single representative at an apple store location and the person says: “here I want to return this,” holding up the phone with the person who calls multiple representatives saying: I have this wonky phone that doesn’t look natural but works. Please take it back.

At that point, Apple did not have internal policies conducive to getting its property back. To impose much more of a duty to return on an individual would set a really high bar for someone who found something. I mean, what does it mean if you found something like money? Although there are serial numbers, it is arguably fungible. Considering the steps taken to return the device to Apple, how diligent of an attempt to return cash would you require?

PatHMV: Chris, I agree. I noted as much in the other thread, my point being that it was Apple’s choice to not clearly identify itself as the owner of the phone, on the phone, and so they should have to suffer the consequences of that choice. Right now, they seem to want to have the benefit of having all Apple phones presumed to be theirs without actually incurring the theft risk of labeling them.

Agreed.

Also Apple agents apparently requested permission to search at least one home in connection with this incident…. (Yes, you read that right. Apple personnel, not police.)

Why should I be banned? At most, I’m guilty of tangential commenting. I was just asking why, on one of my favorite blogs, a libertarian one at that, there have been virtually no posts about the Az situation. I just find it odd given the volume regarding health care and other laws that appear, at least to me, less constitutionally suspect and less liberty infringing.

As to the guy who has commented after me in each thread, I have no idea who he is. Why would you think he is my sockpuppet? He seems to be making fun of me (or the people I arguably agree with, who oppose the Az laws).

Dan Weber: .I’ll also say that contacting the bar where the phone was found would have been very reasonable. Perhaps not legally required…

Actually, I’ve seen posts of some CA law that says it actually is a legal requirement along with a few other options.

PatHMV: All it would take is a sticker on the back that said: “Property of Apple. If found, please call 800–555-1212 immediately.”

When I did a contract stint for Intel Corp, they refused to use such stickers because it was believed that this would make items a theft target. I am not questioning your analysis, just saying it may not have been the best way forward for Apple.

Matt: It seems disputable that a reasonable attempt was made to return it. Surely, a reasonable person would realize that the low level customer support representatives of a multinational corporation would not be the best people to talk to, as they would have no information about secret prototypes. And after that effort failed, wouldn’t a reasonable person try to contact someone higher up in the pecking order, maybe the manager of an Apple store, or take it or mail it directly to Apple HQ in Cupertino which is not that far away?

Many of your suggestions seem reasonable, however, when I was a low-level customer support representative of a multinational corporation, yes, I would have been an acceptable person to talk to about anything equivalent.

Secondly it’s often problematic to just “walk into” a corporate headquarters. At a company like Microsoft, the receptionists were all temps, and knew far less about anything like this than the support people. Also security would get upset if you tried to park your care anywhere on campus without prior permission, esp. if it wasnt a quick in/out sort of thing.

At Intel Corp, they have no receptionists, only security guards. They are VERY good at checking your cards, telling you not to go where you aren’t supposed to go, etc. but I wouldn’t expect them to be well prepared to handle something of this nature.

Neither situation is good.

As for MAILING it in? Good grief…. If one was wrong about it being Apple’s…..

Honestly, if I had something similar, yeah, I would call tech support and explain why I thought this was Apple’s. I would ask the representative to get his/her manager on the phone if I wasn’t believed. I would ask for a followup, ideally from their legal team. I say this having worked in these environments. Of course it is probably not reasonable to expect the other guy to have considered asking to speak with a manager or to have asked for a followup from legal…

But there are no good answers. I suppose one could go to sec.gov, look up Apple Corp’s corporate agent, and send a certified letter to them stating that the item was found and might well be Apple’s…. But is not going that far unreasonable? I doubt it.

As I’ve noted elsewhere, Apple could have made it very easy to return its property. All it would take is a sticker on the back that said: “Property of Apple. If found, please call 800-555-1212 immediately.” They didn’t do that. It’s not the finder’s job to take up hours of his day trying to figure out who is the right person at Apple to receive it.

I’ll also say that contacting the bar where the phone was found would have been very reasonable. Perhaps not legally required, but if I lost something at the Y, I would ask the Y if it turned up.

This was weeks after the guy who found the phone contacted Apple and told them he had the phone.A reasonable attempt was made to return the phone and the guy who found it was told to pound sand.

It seems disputable that a reasonable attempt was made to return it. Surely, a reasonable person would realize that the low level customer support representatives of a multinational corporation would not be the best people to talk to, as they would have no information about secret prototypes. And after that effort failed, wouldn’t a reasonable person try to contact someone higher up in the pecking order, maybe the manager of an Apple store, or take it or mail it directly to Apple HQ in Cupertino which is not that far away? But before any of that, wouldn’t it make sense to take it to the bar where it was lost? From what I read, the employee who lost it repeatedly contacted the bar asking about it, to no avail. The finder’s “effort” seems like the most perfunctory, CYA attempt which he knew wouldn’t work, to give him the excuse to sell it.

Will people only start paying attention to these violent unAmerican nutjobs when they actually kill someone?

Count me disappointed that one of my favorites blogs (legal or otherwise, libertarian or not) has been virtually silent on the Az birther/immigration issue. The amount of breath spent on the constitutionality of “Obamacare” and nothing (even in support) for these laws, except for a single tangential post by Stewart Baker on 4/24?!?

I’m astounded.

The fact that a search rendered statutorily illegal – that is to say that the federal government shall not have the power to do something – has no suppression remedy is amusing. The suppression remedy was, in part, an incentive to prevent the government from doing what it knew to be beyond its power.

Obviously, the glaring difference is Constitutional authority versus statutory authority. More differences include the warrant issued, and so on.

But looking at is as a matter of aligning punishment incentives, the decision to punish with civil suit comes off as strange.

As a matter of law and economics, the government prints money, so what fine is too big to disincentivize action? And, even if you found that sum, I would guess that the ones that do the acts are not those that pay. I read the statute linked, but didn’t look for the penalty sections. So, the low level guys will do it, give a mea culpa, pay the fine, and send a person to jail.

As a matter of social pressure, it still comes back to the suppression remedy and things like the spirit of the 5th Amendment. The 5th Amendment is a right shared by the innocent as much as the guilty. Except, most of our criminal constitutional cases come up with unsympathetic defendants.

Condemnation of government action would likely be low when used to arrest the guilty and unsympathetic. So the motivation there is neither to change the politicians or change the system. This is the Willy Horton-type dilemma.

Thus, without social pressure or economic pressure, I wonder what makes the federal law anything more than an act with bark, but no bite.

If the police are trying to charge whoever sold Mr. Chen the prototype with theft, then the shield law comes into play. But if they’re charging Mr. Chen with accepting stolen property, then it’s not relevant.

As for fishing, I find it perfectly reasonable to suspect that Mr. Chen’s computers would contain communications with whomever sold him the prototype, and those communications would contain evidence proving that Mr. Chen knew the provenance of the device and purchased it anyway. Not every warrant is a fishing expedition.

In the end, the Macalope said it best.

However, what I want to know is what’s in the affidavit. I find the search warrant affidavits to be far more informative than the warrants themselves as to what’s really going on.

Finally I would point out that the mere execution of a search warrant shouldn’t be seen as strongly supporting a conclusion that anything Gizmodo of their employees did was illegal. As I said in my previous review (IANAL, etc), I think such a case would turn on technical elements. That there is enough evidence for a search warrant is no surprise, but that doesn’t resolve the main issues of the case.

One reason however I won’t do business at all with Apple is that they are litigation-happy. However prosecuting technology blogs which hype your products is not a good way forward. I fully expect this to cause issues for them down the road.

This post was mentioned on Twitter by mjntendency: some thoughts on the Gizmodo warrant from my favorite 4th-amendment blogging-scholar http://bit.ly/c7ppY5...

Paul: I’m a little confused — are you saying a “reporter” could say he’s doing an article on chop shops (the type that soup up stolen cars)so he could buy a stolen vehicle as part of the “research” — and the police could not execute a warrant to recover the vehicle from his garage?

No. There are limits on what is shielded, but computer equipment used to collect information, communicate with sources and to edit and produce the actual journalistic work-product would certainly be shielded. Just like lawyers and priests can sometimes be criminals, so can journalists. Even “absolute” privileges are not really absolute. But this should not be such a case. The benefit to the bloggers was the product of their journalism, not from the appropriation of the product. And they returned the product to claimed owner, so the search was certainly not for stolen property. It was a fishing trip, which is what shield laws are specifically intended to prevent.