iPhone-Gizmodo warrant: Sloppy police work is the better story

iPhone-Gizmodo warrant: Sloppy police work is the better story

Summary: An unsealed search warrant does more than just provide details about the lost/stolen iPhone that appeared on Gizmodo. It also hints at some sloppy police work that could come back to bite the cops, the courts and maybe even Apple.

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TOPICS: Telcos
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The search warrant that details what happened in the days before and after Gizmodo posted images of a next-generation iPhone prototype read like a good conspiracy novel - except that the weapons used in this saga are thumb drives, emails and digital camera memory cards. (Techmeme)

You have the deceptive college kids trying to conceal and destroy evidence because they knew the cops were on their trail. You have the snitch roommate who squawks to the cops to keep herself out of hot water. You have a bitter news publisher who's tired of getting the run-around from the powerful tech company that gives him the cold shoulder. And you have a team of eager law enforcement types who were quick to bash in a door and start sifting through desks on behalf of the CEO of that same company, who is also a big name in their county.

CNET's Declan McCullagh has done a great job of breaking down the details of the case, which were unleashed today when the judge agreed to unseal a search warrant at the request of news outlets. After all, the blogs have already outed most of the key players in the case and there didn't seem to be any reason to keep the details private. After reading through the warrant, I can say that it doesn't look good for the kid who took that phone out of a Redwood City bar that night and eventually sold it to Gizmodo. A couple of his friends should also be worried.

Previous: Understanding the legal issues that are clouding the Gizmodo iPhone raid

But they're not the only ones who should be worried. The cops and courts are looking pretty bad here, too.

There's one important fact missing from the text of the search warrant that led police to bash in the door at the home of Gizmodo editor Jason Chen. The warrant, which was written by a veteran police detective whose impressive resume is also in the warrant, failed to fully identify - despite several opportunities - Jason Chen.

The detective refers to Chen as the "guy in the video" on the Gizmodo site. He references him as "suspect Chen." He identifies him as a resident of Fremont, Calif. and the owner of the home that's raided. He even notes that Chen is the guy who made the physical handoff when the phone was returned to an Apple representative. But, he never once identifies Chen as the editor of Gizmodo, or even a working journalist for that matter. The warrant doesn't even identify Chen's relationship to the other parties named. The detective names and identifies a roommate, a girlfriend, the Apple employee who lost the phone, the Apple execs he met with and even references an unnamed uncle. But it never occurred to this veteran detective - or the judge who signed that warrant, for that matter - to ask who exactly this Jason Chen guy is and what role he plays in all of this?

No one ever thought to ask those questions? Did the detective somehow believe that Chen's role wasn't a material fact? Given that the First Amendment of the United States Constitution and a shield law for journalists in California exist, you would think that a veteran detective and a sitting judge might think twice about a thumbs-up on a door-bashing search warrant, right?

Mind you, I'm not saying that the police shouldn't be investigating Chen's or Gizmodo's role in this - if, in fact, it's determined that an actual crime was committed. (Remember, that phone was lost, not stolen, and at the time, the authenticity of it was still unclear.) But, instead of busting down a door on a Friday night while Chen dined with his wife, couldn't Chen have been served with a subpoena instead? Was he a flight risk? Was there really a concern that this journalist might try to destroy evidence? If so, neither of those scenarios were suggested in the text of the warrant.

As far as I'm concerned, my appetite for the details of the lost/stolen phone has been satisfied. The details were juicy and the pieces of the puzzle fit nicely into place. And, it's not as if Apple can undo what's been done - I am one of those people who went ahead and bought a competing device because I'd been given a sneak peek at what Apple was coming out with next. Sure, Apple may prevail in court and could try to recover millions in potential lost revenue from Gizmodo or the kid who sold the phone to Gizmodo - or maybe even the employee who lost it in the first place. Beyond that, it doesn't really matter, right? It doesn't change anything.

But this story of the cops and the courts stomping on the First Amendment and the rights of journalists will be a good one to follow. I understand that there's a bitterness of sorts among readers toward journalists, especially when it looks like a journalist might have been involved in a crime and is trying to hide behind the First Amendment to protect his butt. But journalists need these protections - and deep down inside, you want and need journalists to be protected by the Constitution. This Apple case is a horrible example of why these protections are important. But, if this were a case that involved deceptive business practices or corrupt politicians or a police coverup, you would want these protections in place so that journalists could get to the truth and hopefully right some wrongs.

That's why I'm writing this - to expose a few "wrongs." It was wrong for the cops to bash in Jason Chen's door and seize his property. It was wrong for the detective to not identify Chen as a journalist in his request for a search warrant. And it was wrong of the judge to grant the warrant over a subpoena if he knew that Chen was a journalist - and just as wrong if he granted it without asking for more details about Chen.

Who cares about Apple and its iPhone? It's just a device. The First Amendment is on the line here. That's what we should be worried about.

Topic: Telcos

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55 comments
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  • Prayer may be the LAST resort of a scoundrel

    But the First Amendment appears to be their <i>first[/i]! Sam, you're a decent tech blogger, but opining on the law is definitely an over-reach for you.</i>
    matthew_maurice
  • Leave the law to the lawyers

    Seems a logical conclusion after reading the ENTIRE document that after two of the parties began hiding and possibly destroying evidence it could also be assumed that Chen might also do the same and thus getting a warrant ASAP would be critical and valid. After reading the whole thing it is clear to me that these weren't law abiding boy scouts and Gawker deserves what it gets after behaving like children. I'm surprised you'd defend them.
    agraham999
    • RE: iPhone-Gizmodo warrant: Sloppy police work is the better story

      @agraham999 I'm not defending Chen or Gawker. I'm trying to defend the rights of journalists and the First Amendment.

      If there was a concern that Chen might also try to destroy evidence, I would think that the detective would have said as much in the warrant request to further convince the judge to sign it. He didn't.

      They should have issued a subpoena and let the lawyers work it out. That would have been the right way to handle it.

      @matthew - sorry I didn't meet your standards. For what it's worth, I've been around the block a few times as it relates to media law. Thanks for the talkback.
      SamDiaz
      • Arrogant...

        @SamDiaz You need to accept that whilst you may have [i]"been around the block a few times as it relates to media law."[/i], you are by no means an expert, and that was an arrogant response.

        "[b]But this story of the cops and the courts stomping on the First Amendment and the rights of journalists will be a good one to follow. I understand that there??????s a bitterness of sorts among readers toward journalists, especially when it looks like a journalist might have been involved in a crime and is trying to hide behind the First Amendment to protect his butt. But journalists need these protections - and deep down inside, you want and need journalists to be protected by the Constitution...[/b]"

        Bitterness? Arrogance again, Sam. How about insecurity of 'journalists'? You like Chen, are a blogger. Get over yourself. This doesn't "[i]looks like a journalist might have been involved in a crime[/i]" at all! The guy knowingly received stolen goods! This is an offence! It is a simple as that! You are suggesting that he "[i]hide behind the First Amendment[/i]" -- he is! I've already stated why this stinks; [b]You and he are not journalists, you are paid [i]bloggers![/i][/b] Yes some, journalist should be protected by the First Amendment if the story is of interest to the public and/or is in the interest of national security. This story was neither. Gawker partook in criminal activity knowingly to make a profit. It doesn't matter how you dress it up, Chen and his employers knowingly broke the law. This isn't a freedom of the press issue; no-one has said that Gizmodo didn't have the [i]right[/i] to publish the story. What this is an issue is the way that Gawker conducted themselves. They, like the others involved, deserve to have the book thrown at them.
        webmaster@...
      • Let's see what the guys with J.D.s and LL.D.s have to say.

        @SamDiaz You can barely self-edit the run-ons and bad grammar in your posts, so pardon me if I'm not impressed with the "blocks" you've been around in regards to Constitutional law and California Penal Code.
        matthew_maurice
      • I'll support your "been around the block" claim, Sam

        as many of the posters here take matters into their own hands because "they've been around the block" themselves. Many have wired a recepticle in their houses even though they're not trained, licensed electricians. How? because they understand the code by watching what others with training have done.

        So how can they say even though you've dealt with it, you haven't a clue? We don't need to be a doctor to understand what pains are normal and what ones aren't, just like you don't have to be a lawyer to understand, or have an opinion on what constitutes "stepping over the line".

        it just comes with dealing with these things everyday.
        AllKnowingAllSeeing
      • RE: iPhone-Gizmodo warrant: Sloppy police work is the better story

        @webmaster@ I appreciate your feedback and, quite honestly, you can say whatever you'd like about me - I'm thick-skinned enough to take whatever you can throw my way. But just to set the record straight: I am a journalist. Full-fledged degree-holding, card-carrying, regular-salary journalist for the past 20 years. Just so we're clear...
        SamDiaz
      • RE: iPhone-Gizmodo warrant: Sloppy police work is the better story

        @SamDiaz I don't care if you're a "journalist" or a "blogger" or a "policeman" or a "doctor" or a "magician." Nobody gets (or should get, at least) special protection. The First Amendment applies to everyone. It gives you the right (among other things) to publish what you want without government interference. It doesn't give you the right to commit crimes along the way. Deep down inside, I neither want nor need people to be able to steal or purchase stolen property and get away with it, merely because of the profession that they're in.

        It's obvious to anyone but the irrational Apple-haters that what Hogan did was wrong, and that what Chen/Gizmodo did was wrong. They were greedy and arrogant and both attempted to profit off someone else's misfortune. Hopefully they're both punished severely.
        ben12345
      • Just one thing...

        @SamDiaz: Sorry, man - but there's one big, glaring diff here that seems to be all too easily glossed over.

        If Gizmodo had paid to see and take pictures of the thing, no problem - the media shield laws would protect them, and that would be that. They could have then happily posted all the pics and descriptions they like.

        BUT - Gizmodo didn't do that. By their own admission, they bought tangible stolen goods. Nowhere in the First amendment is blatantly committing a felony protected, period. As one who holds a degree in journalism, you of all people should know that.

        I can respect the opinion that maybe the cops didn't do their jobs by the book, no problem. Maybe they didn't dot all of the eyes and crossed all the tees. But, the fact remains that (again, by their own admission) Chen/Gizmodo/Gawker did commit a felony. This is plenty enough preliminary evidence to serve a warrant and carry it out.

        Something else sticks here - if an ordinary guy with a small blog were to have pulled this stunt, there would be no subpoena, clash of lawyers, etc... it would have been the same routine that Chen got - a warrant and seizure.

        Something else I've been wondering about, and maybe you can answer it... if ZDNet did what Gizmodo did, would the editor/journalist/blogger have been fired for trying, or not?
        Random_Walk
      • RE: iPhone-Gizmodo warrant: Sloppy police work is the better story

        There seems to be this perception that I'm defending Chen or somehow saying that he is above the law. That is the furthest thing from the truth. If Chen committed a crime, then he should be held accountable for that crime.

        But many have been so quick to assume that an actual crime has been committed. After all, no one has been arrested yet. Personally, I can't imagine there's not a crime in here somewhere - but we don't even know what the charges might be. Theft? Conspiracy to commit theft? Buying stolen goods? The DA will have to be able to file charges that he can make stick in a criminal prosecution.

        Many also have been quick to dismiss Chen's role as a journalist here. Maybe it won't matter in the end. But the fact is that Chen is employed as a journalist by a media company (regardless of your feelings about Chen, the blog or the parent company). Likewise, the fact is that there are legal protections in place for journalists (whether you agree with them or not).

        I'm not saying those protections will or should prevent him from being held accountable. I'm saying that those protections should have been considered when choosing between bashing in his door to serve a warrant or ringing the doorbell to serve him with a subpoena.

        Chen's role as a journalist is relevant to many pieces of this criminal puzzle. To ignore it is irresponsible...
        SamDiaz
      • RE: iPhone-Gizmodo warrant: Sloppy police work is the better story

        @SamDiaz <br><i>If there was a concern that Chen might also try to destroy evidence, I would think that the detective would have said as much in the warrant request to further convince the judge to sign it. He didnt.</i><br><br>I am sure it is a given that Chen would destroy the evidence of the crime, if given the chance. Yes it is a crime to sell an object that you do not own. What would you say if the item in question was a set of car keys? Would that change you opinion? Hey if I bought the keys to a prototype car and blogged about the car, should I have the right to take the car? To be honest Journalism has become a shield for all sorts of nefarious activity. The integrity of many journalists is questionably,and I am being honest. I believe that purchasing property that is stolen, is in itself a crime. Doing under the guise of journalism does not change the fact that Chen bought stolen property, to gain profit. Yes, Chen determined that he could profit from the stolen property, or he would not have paid for it. Sure there are some activities that should warrant protection, but there is more tot his story than the popular media is going to report.
        Rick_K
      • RE: iPhone-Gizmodo warrant: Sloppy police work is the better story

        @SamDiaz:

        Fair enough, but c'mon, you're starting to hide behind stuff here. Just because no one has been arrested doesn't mean that, given blatant evidence, one cannot say that a crime has not been committed. It's pretty obvious that Gizmodo bought stolen goods. They admitted as much in their own words.

        The DA is likely wanting to sort things down and make sure he has an airtight case. Given the nature of the subject, no one is in immediate physical danger, so there's no harm in the DA taking his/her time to get the arrow lined up. I suspect that the only real question is what the DA will ask for by way of punishment when he/she levels charges, and against whom. I do not doubt that Chen and Hogan (the guy who swiped it) will get a piece of that, but I think that the biggest question lies in who else will get thrown in the docket - Gizmodo, Gawker, the idiot buddy of Hogan's who helped him shop for a buyer, etc... they may be well split into more than one case (one for theft, one for knowingly buying stolen goods, etc). But - the fact remains: world dog knows there's a crime involved here.
        Random_Walk
      • RE: iPhone-Gizmodo warrant: Sloppy police work is the better story

        @Random_Walk: I think you're absolutely right about the DA needing to take his time and figure out who will be charged with what. Well said...

        @ Rick_K: You write: "I am sure it is a given that Chen would destroy the evidence of the crime, if given the chance." I don't know Chen personally so I don't have any first-hand knowledge about his character, aside from what's been said about him in the blogosphere. Do you know him personally? If not, how can it be a "given" that he would destroy evidence? I'm just sayin...
        SamDiaz
      • RE: iPhone-Gizmodo warrant: Sloppy police work is the better story

        @SamDiaz <i>But many have been so quick to assume that an actual crime has been committed. After all, no one has been arrested yet. Personally, I can't imagine there's not a crime in here somewhere - but we don't even know what the charges might be. Theft? Conspiracy to commit theft? Buying stolen goods? The DA will have to be able to file charges that he can make stick in a criminal prosecution.</i>

        So what if no one has been arrested yet? That's generally the way the process works: Someone reports a crime, the police investigate it, then the DA decides whether to prosecute or not. So far, they're still in the evidence gathering/investigation stage. Sure, there's no way for anyone to know if these guys will eventually get charged or whether they'll be found guilty if they do. That doesn't mean that we don't have common sense. It's quite obvious that a crime was committed, but whether it can be proved legally is a different question.

        As to what the charges might be, a good place to look is the warrant affidavit. "496(a) PC - Buy or receive stolen property (a felony), 496c(b)(3) PC - Theft; Without authority make or cause to be made a copy (definition includes photograph) of any article representing a trade secret (a felony), and 594(b)(1) - Maliciously damages property of another valued over $400 (a felony)." Obviously if Chen is eventually charged, it might not be for these exact things, but that's what they're at least looking at.

        And you and others keep using the phrase "bash in the door" to try to make it sound like they did something completely unreasonable. The police had a warrant signed by a judge. Chen wasn't home when they went to serve it, so they legally entered the home. It's pretty standard. Had he been home, they would have just knocked. You can argue that they should have used a subpoena instead of a warrant (which I disagree with) but since they had the warrant, there was nothing wrong with what they did.
        ben12345
      • Journalists go to jail, too

        @SamDiaz

        when they knowingly receive stolen goods. The First Amendment is not diplomatic immunity.

        And computer raids are ALWAYS done when the occupant is not home to prevent them from deleting evidence.
        frgough
  • RE: iPhone-Gizmodo warrant: Sloppy police work is the better story

    I have no idea what matthew_maurice means, but thanks for the good article, Sam.

    As you know, responses are rampant on message boards wanting to convict Chen. I'm just glad all these guys are not responsible for judging the guilt or innocence of people. Oh, wait a minute, since we have a judicial system of a jury of our peers, they are. That's a frightening thought.

    I wonder how many of these people have found any money (even a nickel or a quarter), any golf balls on a golf course, have taken an office supplies for personal use even a pen... By their own definition, they should be arrested for having stolen property because it does not belong to them! Sheeesh.

    I could be wrong, but I am going to bet that the authorities don't even prosecute Chen or Lam or the guy who found the phone. Since Apple told the police that the prototype is "priceless", that means these guys should be arrested for felony, right? So if they are not prosecuted, then we will truly see for whom whose "opining on the law" is an over-reach.
    jimrin
    • RE: iPhone-Gizmodo warrant: Sloppy police work is the better story

      @jimrin

      If any reasonable person found a wallet with someway to identify the owner, they would surely hand it in to the police or try and make contact with the rightful owner. A thief would attempt to justify that it is OK to keep the wallet and would somehow justify their actions as reasonable i.e. 'it sucks to be the person that lost their wallet.'

      The case of the 'lost' iPhone mirrors the example above. The rightful owner was known to the person who found the phone and judging by the scramble to hide his tracks later on, he very well knew he was doing something wrong.

      All stealing is technically wrong and common sense dictates that stealing a pen from a company does not land you in jail because the damages inflicted are not worth pursuing, however, when the value increases - people are prosecuted for the choices that they made. I would think a pre-release iPhone that generated several million hits for Gizmodo would qualify as such an item.
      nasholla-23499053593236936579525641991178
      • I used to work in retail...

        & yes, they do prosecute you over stealing pens, paperclips, soda, staples, or anything else they can get proof of when they send in their Loss Prevention teams.
        Jared Neale
      • RE: iPhone-Gizmodo warrant: Sloppy police work is the better story

        @nasholla

        I did not mention wallet, did I? I'm talking about people who find money...
        jimrin
    • True life incident.

      @jimrin [i]I wonder how many of these people have found any money[/i] I found an ATM card, and returned it to the owner, on more than one occasion. On both occasions I could have taken money out of the people??????s account; but chose the ??????high road??????, and did not. This is how I was brought up, but there are people in this world that would thicken nothing of taking money out of an account, which is the same thing as selling property that they do not own. The fact that the ??????finder?????? (that is if the guy isn??????t a pick pocket artist) was looking to sell it for profit, says a lot. Journalists are not supposed to [b]promote[/b] crime, which is what Chen did. Sad reality these days is people put their own greed ahead of the rights of others.
      Rick_K