D.A. Withdraws Warrant in Gizmodo iPhone Prototype Case

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A request by the San Mateo County District Attorney Office to withdraw its search warrant of Gizmodo editor Jason Chen’s home was granted on Friday, according to the Electronic Frontier Foundation. The warrant had been issued in relation to an investigation into a iPhone 4 prototype Gizmodo purchased and Apple later reported as stolen.

Gizmodo and Mr. Chen became the focus of a felony theft investigation after the self proclaimed blog posted articles, videos and photos of an iPhone 4 prototype ahead of the product announcement and launch. Gizmodo purchased the prototype claiming it had been lost in a bar and that they weren’t sure it belonged to Apple.

Local authorities executed a search warrant at Mr. Chen’s home and confiscated computers and other items as part of their criminal investigation. Gizmodo, however, claimed that it should be protected from investigation under California’s journalist shield law.

The order withdrawing the warrant doesn’t state why the DA’s office made the request.

The items seized from Mr. Chen’s home will be returned, but that doesn’t mean this is the end of the case. Authorities could subpoena the items they confiscated under the criminal search warrant, and returning the items doesn’t mean the case will be dropped.

“While the D.A.’s withdrawal of the April 23rd warrant is certainly a positive step, this likely isn’t the end of the matter… the police could (for example) attempt to subpoena the same material without running afoul of section 1524(g) and still proceed with their case,” the EFF said.

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“self-proclaimed” should be hyphenated.


Key quote from the Electronic Frontier Foundation: The warrant-backed search of Chen’s home was illegal as it violated California Penal Code section 1524(g)‘s prohibition against the issuance of warrants for “unpublished information obtained or prepared in gathering, receiving or processing of information for communication to the public” [by a journalist.]

Although a subpoena is possible, a settlement offer with Chen is another alternative we might see.

Lee Dronick

The warrant-backed search of Chen?s home was illegal as it violated California Penal Code

Well that is their opinion, but legality of the warrant is not for them to decide.

Bosco (Brad Hutchings)

One day when I need an especially long bathroom break, I am going to compile a list of commenters here who stated that Apple/REACT was perfectly legitimate in raiding Chen’s home. Looks like you were all kinda wrong about that. Hmmmmm….


The D.A. withdrew the search warrant, afte Mr. Chen, through his attorney, agreed to let the D.A. conduct a full search of the property seized.  After the D.A. has conducted a thorough search of Mr. Chen’s property it will be returned to his attorney.  Since Mr. Chen is volunteering to let his property be searched, any incriminating evidence discovery during that search may be used again him in a court of law.

See this quote from MacWorld:

“?We did request and the court granted our request to withdraw the search warrant,? Chief Deputy District Attorney Steve Wagstaffe told Macworld. ?The reason we?ve done this is that we arrived at an agreement with Tom Nolan, the attorney for Mr. Chen, that if we would agree to withdraw the warrant, they would agree to voluntarily have all information from the computer?which is in the hands of the special master now?provided to the REACT [Rapid Enforcement Allied Computer Team] detectives so it could be viewed.?

The two-page document ordering the withdrawal, a copy of which was obtained by the Electronic Frontier Foundation, says that seized items will be returned to Chen through his attorney after the authorities verify the copies of the information that the Gizmodo editor is providing.”


And one more thing.  Mr. Chen’s voluntary submission of his property to the authorities ends his objection to the search of his property on First Amendment, Fourth Amendment, and/or statutory grounds.


After having read the court’s order, I amend my comments.  The D.A. and Mr. Chen agreed to allow the police to inspect and essentially catalog his property, which the D.A. can then seek through a subpoena.  But since the D.A. will have a complete catalog, and, I think, copies of the property, Mr. Chen will not have the opportunity to engage in spoliation of the subpoenaed property, which will almost certainly be everything that the police initially seized pursuant to the warrant, for it is a trivial matter to draft a subpoena that comprehends the same property that was seized under the warrant.  Mr. Chen will have to produce the subpoenaed property in complete and good order or risk being convicted for obstruction of justice. 

Once again, the D.A. will get everything that he wanted and will have eliminated the possibility of any First Amendment, Fourth Amendment, and/or statutory challenges to any incriminating evidence obtained from the property that he subpoenas.


Maybe he agreed to the voluntary search etc so he could get his equipment back? Otherwise he’d have to wait until the case is done. Perhaps this is the reason the deal was struck?

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