With one side yelling that Gizmodo should burn in hell, and the other screaming that Apple is more evil than the smoke monster from LOST, it’s nice to finally see a level headed discussion of the pertinent issues surrounding the recent search and seizure of electronic equipment from the home of Gizmodo editor Jason Chen.
Shira Ovide of the WSJ recently asked Andrea Russio, the executive director of the Berkeley Center for Criminal Justice at UC Berkeley Law School, a few questions about the legality of the search warrant exercised on Chen’s home.
Regarding if the iPhone 4G can be categorized as stolen if it was innocently left behind by an Apple engineer: Short answer – Yes.
There’s a penal code section, California penal code 485, which says if you find lost property and you have some ability to find out who the owner is, you have an obligation to do that. I think the guy who found the phone and knew whose phone it was, could be charged with theft. Gizmodo, I think, could be charged with receipt of stolen property. In order to charge them, [Gizmodo] would have to know the phone was stolen.
But is a strong suspicion that the phone was stolen sufficient to constitute receipt of stolen property? Russio writes that Gizmodo would have had to have “actual knowledge” that the item was stolen. This seems to be a convenient loophole because couldn’t the purchaser of stolen property always argue that they weren’t 100% sure an item in question was stolen? I imagine that “actual knowledge”, in practice, equates to asking – Would an ordinary man, given the same circumstances, reasonably assume that an item for sale is stolen property?
Moving on, and echoing what we’ve been articulating here, Russio reaffirms that Gizmodo’s participation in the sale of an item that was reported stolen by Apple is enough to justify the issuance of a search warrant on Chen’s home. Seizing as much equipment as they did, Russio says, might have been going overboard, but the warrant itself appears to be valid.