October 13, 2011 | By Matt Zimmerman

Police Who Illegally Broke Into Gizmodo Journalist's House Deride Seized E-mails as "Juvenile"

The saga of the lost iPhone prototype -- the 2010 incident at least, not the most recent one -- has finally concluded. On Tuesday, Brian Hogan (who allegedly found the iPhone 4 prototype in a Redwood City bar) and Sage Wallower (who allegedly helped Hogan contact various web sites about the find) pleaded no contest to misdemeanor theft and were sentenced to probation, 40 hours of community service, and $250 each in restitution payments to Apple.

As part of the criminal investigation surrounding the incident last year, agents with the Rapid Enforcement Allied Computer Team (REACT), a "partnership of 17 local, state, and federal agencies" focused on computer-related crime in the Bay Area, executed a warrant and raided the home of Gizmodo editor Jason Chen, searching for evidence related to Gizmodo's scoop about the lost phone. As we repeatedly pointed out at the time, regardless of whether Chen or Gizmodo could have been charged with any crime related to obtaining and discussing the phone, state and federal law plainly barred the issuance and execution of the search warrant directed at journalist-held information "obtained or prepared in gathering, receiving or processing of information for communication to the public." While never discussing the matter directly, the San Mateo D.A.'s office tacitly conceded as much three months later when they petitioned the court to withdraw the warrant.

It turns out that prosecutors concluded that neither Chen nor Gizmodo did anything wrong after all. Legally, that is. Speaking to CNET.com earlier this week, San Mateo County District Attorney Steven Wagstaffe said that there was not sufficient evidence to charge anyone associated with the tech site with "possession of stolen property" or "extortion." Nevertheless, Wagstaffe took it upon himself to deride the quality of the improperly-seized, unpublished correspondence between the Gizmodo editors, describing it as "juvenile."

"It was obvious that they were angry with the company about not being invited to some press conference or some big Apple event. We expected to see a certain amount of professionalism--this is like 15-year-old children talking," Wagstaffe said. "There was so much animosity, and they were very critical of Apple. They talked about having Apple right where they wanted them and they were really going to show them."

San Mateo law enforcement officers are in no position to comment on professionalism in this matter. Illegally breaking into the home of a journalist and seizing his property is profoundly troubling, especially as law enforcement shows no apparent sign of remorse or of learning from their mistake. Indeed, one cannot avoid feeling a sense of deja vu upon hearing the recent news of the questionable police-escorted search of a San Francisco home by Apple employees apparently looking for another lost iPhone prototype. As it was their agents who did not comply with the law, Wagstaffe and the San Mateo County Sheriff's Office owe Chen and Gizmodo an apology, not snide commentary, now that the matter has concluded.


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