Judge nixes media request for iPhone warrant

Judge refuses to consider media organizations' request to learn the justification police used to search a Gizmodo editor's home for information about the sale of a possible iPhone prototype.

Declan McCullagh Former Senior Writer
Declan McCullagh is the chief political correspondent for CNET. You can e-mail him or follow him on Twitter as declanm. Declan previously was a reporter for Time and the Washington bureau chief for Wired and wrote the Taking Liberties section and Other People's Money column for CBS News' Web site.
Declan McCullagh
3 min read

REDWOOD CITY, Calif.--A San Mateo County judge on Thursday refused to consider a request by media organizations to learn the justification police used to search a Gizmodo editor's home for information about the sale of a possible iPhone prototype.

Judge Stephen Hall rejected the group's request for a hearing on Thursday, instead assigning it to the judge who granted the search warrant last month and who is expected to hear arguments next week.

The District Attorney's Office opposed the request filed by CNET, the Associated Press, Bloomberg, the Los Angeles Times, and other news organizations in a legal brief filed Thursday with the court. The prosecutors argued that they have the right to "maintain the security of an ongoing investigation, which may well be compromised by the disclosure of the search warrant affidavit."

The reason for the sealing is that the documents contain the names of two individuals of interest, whom police do not want to alert, an attorney for the media coalition said after talking to Stephen Wagstaffe, chief deputy district attorney.

Prosecutors also said the sealed affidavit is "not a public record and thus is not subject to requests under any public-records act."

The judge who originally signed the search warrant for Jason Chen's home--a warrant that may be invalid under California's newsroom search act--is Judge Clifford Cretan. The judge is currently presiding over a trial and is not expected to consider the request until next week.

Wagstaffe said in an interview with CNET that there is "further investigation we want to do, people we want to speak with." He defended his office's decision to search Chen's home office, saying "our belief is that it's a proper search." He said discussions with Chen's attorney over the computers seized during last month's evening raid are ongoing.

The iPhone saga began in March, when Gray Powell, a 27-year-old Apple computer engineer, left what may be a 4G iPhone at a German beer garden in Redwood City, Calif. According to a Wired.com report on Thursday, Brian Hogan, 21, has acknowledged finding the phone. With the help of friends, Hogan approached multiple tech news sites before finally selling the handset to Gizmodo for $5,000.

Prosecutors in the case say they are conducting a felony theft investigation, but no charges have been filed. Police have interviewed Hogan and one other unidentified man in connection with the sale to Gizmodo.

On April 23, just hours after CNET reported that Apple had contacted law enforcement officials about the phone and an investigation was under way, police showed up at Chen's home in Fremont, Calif., across the bay from San Francisco. After breaking down his door, they confiscated three Apple laptops, a Samsung digital camera, a 32GB Apple iPad, a 16GB iPhone, and other electronic gear, according to documents that Gizmodo posted.

Gawker Media, Gizmodo's parent company, has called the search warrant "invalid," and an attorney representing the blog network last week said the option of a lawsuit "is available because search is not the appropriate method in this situation."

Full coverage: Lost iPhone prototype spurs legal action