UPDATE: Some readers think I'm being unfair here, but I'm not. Let me explain this in terms of gang-vs.-gang politics, which is really the operative paradigm.
First, in the absence of an unusually solicitous California statute, there'd be no claim by Apple (the most powerful gang here) against Gizmodo --- their employee lost the iPhone in a bar, and that would be their tough luck. But there's also another unusually solicitous California statute that immunizes journalists. But even in the absence of the statutes, the cops would never have raided, say, a reporter for the San Jose /Mercury News,/ because if they had, the /Mercury News/ would have run a 16-part series on police corruption and ineptitude. They're not similarly afraid of bloggers, because bloggers don't have as powerful a gang, or so they think.
But it's all gangland politics, no more and no less. UPDATE: Reader Robert O'Rourke writes: What about the judge who signed the warrant? Isn't he the one with the law degree? The one who passed the California bar exam? The one who is supposed to be the firewall between citizens and lame ass cops?Back in the Framing era, judges were liable when they issued an improper search warrant. But, thanks to the --- judge-created! --- doctrine of judicial immunity, no longer. . . .
ANOTHER UPDATE: Reader Stephen Commiskey writes: So what's your opinion on Gizmodo outing the engineer? I can't be the only one of your readers who thinks the cops and Gizmodo are both less than laudable. You read Slashdot, and the comment thread there is full of this. Actually, either there or on Instapundit, I'd like to hear your brief opinion as a law prof: at common law in the US (as opposed to the Cali law at issue here), would the prototype be considered stolen goods given what happened? As a corollary, to ask a (potentially trivial, forgive the non-lawyer) question raised by a lot of Slashdotters, is my phone finders-keepers at common law the moment I get drunk at a bar and accidentally leave it behind? Even if it's logged into my Facebook account, so that there's no question to whom it belongs?At common law, there'd be an action to recover the property in replevin, and perhaps an action for trespass to chattels or conversion. But there would be no crime, and no cops crashing in and seizing computers.
MORE: Reader Scott Benger writes: I am not a lawyer, but it seems pertinent to me to include in this discussion Apple's treatment of its customers whose i-phones are stolen. Apple encourages the theft of i-phones by refusing to discontinue itunes service to those phones reported as stolen. The stolen phone can be enrolled in itunes service by the thief even though the owner provides a police report of the theft. My sympathies for the Apple company in the loss of their prototype run very very thin. Good point.Posted at 8:21 pm by *Glenn Reynolds* <http://pajamasmedia.com/instapundit/98282/>
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