I think you're misunderstanding here--I am not saying the phone isn't or won't be considered legally "stolen." Despite the considerations I posted, here is my opinion:
--The prosecutor/courts will decide that the phone was "stolen" under the CA law that dates back to 1872.
--The person who sold the phone will be prosecuted.
--Gizmodo will face a civil suit involving the UTSA and misappropriation.
--Gizmodo employees will not face criminal prosecution for buying stolen property. My prediction (and that's all) is they'll get off on this one, because it's unlikely that they knew the phone was considered legally stolen under a relatively obscure statute.
One major point of law here that you're overlooking is that ignorance of the law is *never* an excuse. It's not going to work for Gizmodo any more than it will for the "finder". The only thing that could apply that would distinguish the two is if Gizmodo didn't know they were buying something that was stolen...not that they didn't know the law, but rather that they didn't know the "finder" wasn't the rightful owner of the property. Gizmodo claims they knew the "finder" found the phone and published the circumstances around the finding and failure to return.
Sections 485 and 496 of the California Penal Code aren't relatively obscure statutes. The "dating back to 1872" is misleading as many very important laws date far back in time (murder, rape, etc...). People are prosecuted by these laws all of the time. California Civil Code 2080 deals with the process of handling found property, and check your police station for how often they have auctions for property that was returned but then not claimed.
If there's some good that comes out of all of this, maybe a lot of people who find stuff will now realize that they have legal responsibilities if they take possession of what they find.
Hey all, 1st post here, and an interesting topic ...
Lots of discussion about whether Gizmodo should have immediately returned the phone to Apple.
But that presumes Gizmodo knew Apple was the owner.
If a person leaves their phone in a bar, I would assume that person is the owner - not the manufacturer of the phone.
Seems like Gizmodo did an excellent job of finding a way to get attention, then Apple stepped forward and said that it was in fact the owner.
Then Gizmodo gave it to Apple.
It doesn't matter if it was an Apple prototype or fake knock-off. It also doesn't matter what Gizmodo thought in relation to this.
According to Gizmodo, the "finder" saw the Facebook profile of the engineer who lost the phone. The "finder" or Gizmodo could've easily contacted the engineer through Facebook.
But worse, they could've also given it to the bar manager, or at least notified the bar manager.
They should've either taken or sent it to Apple, if they believed it belonged to Apple, or taken or sent it to a police department.
The ONE thing you never do with found property is sell it before it's gone through the process outlined in detail in California Civil Code 2080.
This is what I don't understand and seems strangest to me. Unless these barstools have backs on them, I can only imagine leaving a jacket maybe hung on the back of a barstool.
But this wasn't a jacket. I mean, if you're sitting on the barstool, how do you leave it there? Are you sitting on it (the phone)? Is the super secret prototype in his back pocket being crushed? Or did he go to the bathroom and think, "I'll just leave my phone here so no one steals my seat." I just can't imagine the scenario where the phone got left on the barstool. On the bar...yes. On the floor...yes. But not on the barstool itself.
Quote:
Originally Posted by jragosta
Exactly. If it fell out of your pocket, it's probably on the floor. If you set it down and stepped away, it would probably be on the bar (although that's pretty unlikely).
The only way I could think of someone finding it on a bar stool is if it was still in the owner's pocket - which adds a whole new dimension. Gizmodo offers large bribe for phone, someone goes to bar where Apple engineers hang out, sees engineer with interesting phone, and it magically goes from one pocket to another.
It's not hard to imagine someone being willing to steal a phone for $5 K - particularly since Gizmodo undoubtedly told them that under the Shield law, that they could never be forced to give up their name.
You guys are really focusing on this aspect of the story? I really can't understand why. There is no evidence it was made up...none whatsoever. For me, I don't even find it strange. I leave stuff all over the place, especially my phone.
Quote:
Originally Posted by Prof. Peabody
Same to you!
Seriously, you are "calling the kettle black" here.
Not at all. My entire point is that we don't know what some of the determinations are going to be, including whether or not the phone will be considered legally stolen.
Quote:
You say that "Not a single person has indicated the bar story is false," but you fail to mention that one person (the thief) is telling that story. The only other person who was even there was the Apple engineer that lost the phone, and he has been told not to talk about it so how could anyone contradict the story? You also (falsely) make it sound like the engineer agrees with you merely by his silence. Not true at all and you should know so.
I'm not saying it's a true story. I'm just saying I've seen no evidence that it's made up. Granted, the engineer can't come forward. But, that's not my problem. It doesn't make the story false. In fact, the story itself sounds plausible to me.
What I'm not going to do is run around tossing around crazy theft theories. You guys can have fun with that.
This is what I don't understand and seems strangest to me. Unless these barstools have backs on them, I can only imagine leaving a jacket maybe hung on the back of a barstool.
But this wasn't a jacket. I mean, if you're sitting on the barstool, how do you leave it there? Are you sitting on it (the phone)? Is the super secret prototype in his back pocket being crushed? Or did he go to the bathroom and think, "I'll just leave my phone here so no one steals my seat." I just can't imagine the scenario where the phone got left on the barstool. On the bar...yes. On the floor...yes. But not on the barstool itself.
The bar stools don't have backs on them. There are two types of stools there. The standard round wooden top and a square cushion top (it's a very hard cushion). Both stools are such that you can't have an iPhone in your front or back pocket when wearing jeans...at least I can't and from the looks of everyone else, you couldn't with any pants. Everyone there has an iPhone with a few Blackberries and maybe the odd retard phone.
It's a very serious beer bar with beer being served in .5, 1L or 2L sizes. Some of the beer has very high alcohol levels. The bar gets pretty wet with spilled beer, even if people leave their phones on the top of it. The bar can feel small and intimate with areas where the bar stools can be hidden away.
It wouldn't surprise me if the engineer placed the iPhone on a stool because he couldn't keep it in his pocket, didn't want it to get wet on the bar, or didn't want people to see it on the bar, and of course it could've been placed on the stool with other stuff, perhaps stuff that the engineer grabbed on the way out thinking he was also taking his phone.
Or maybe he did find a dry place on the bar, and had it there but someone intentionally swiped it when he wasn't looking.
If you're a phone thief, this would be a target rich environment.
One major point of law here that you're overlooking is that ignorance of the law is *never* an excuse.
That's absolutely incorrect. For example, Virginia enacted some draconian speeding fines a few years back. We're talking about $1,200 fines for speeding. It was determined that this law could not apply to out-of-state residents, because they could not be expected to be aware of such massive fines. So ignorance is sometimes a defense. You lose.
Quote:
It's not going to work for Gizmodo any more than it will for the "finder". The only thing that could apply that would distinguish the two is if Gizmodo didn't know they were buying something that was stolen...not that they didn't know the law, but rather that they didn't know the "finder" wasn't the rightful owner of the property. Gizmodo claims they knew the "finder" found the phone and published the circumstances around the finding and failure to return.
That remains to be seen. I tend to think otherwise. It may not have been reasonable to expect Gizmodo to know that the phone would be considered stolen when it was actually lost. The issue here is you're confusing moral obligations with legal ones. Of course they knew the finder wasn't the rightful owner, but that doesn't make the item legally "stolen" (or..it might..but Gizmodo probably didn't know this).
Quote:
Sections 485 and 496 of the California Penal Code aren't relatively obscure statutes. The "dating back to 1872" is misleading as many very important laws date far back in time (murder, rape, etc...). People are prosecuted by these laws all of the time. California Civil Code 2080 deals with the process of handling found property, and check your police station for how often they have auctions for property that was returned but then not claimed.
If there's some good that comes out of all of this, maybe a lot of people who find stuff will now realize that they have legal responsibilities if they take possession of what they find.
Thanks, professor. I was merely using the language in the article. I was not attempting to imply the law was dated and therefore not enforced or unknown. I was just being specific. As for "obscure," I suppose that's relative. Frankly, I don't see how someone would be expected to know that a lost item would be considered legally stolen in some circumstances, nor do I know if ignorance of said law is a defense in this case. But it might be...or it might be enough for the prosecutor to refrain from charging Gizmodo's editors.
That remains to be seen. I tend to think otherwise. It may not have been reasonable to expect Gizmodo to know that the phone would be considered stolen when it was actually lost. The issue here is you're confusing moral obligations with legal ones. Of course they knew the finder wasn't the rightful owner, but that doesn't make the item legally "stolen" (or..it might..but Gizmodo probably didn't know this).
That is really the issue. Assuming it was lost (most plausible), then the finder is not allowed to sell it (until certain conditions are met, time passed). The act of selling found property is itself what might then mean it is considered selling stolen property. If selling lost property is actually selling stolen property, then Giz buying it becomes buying stolen property.
It seems to me that judges decisions are not always based on the letter of the law, so it will be interesting to see what Giz's lawyers have to say. I don't think the spirit of the law would include convicting someone that bought it with the intent of restoring it to the original owner. They may have had other intentions as well, but that one is obvious.
That's absolutely incorrect. For example, Virginia enacted some draconian speeding fines a few years back. We're talking about $1,200 fines for speeding. It was determined that this law could not apply to out-of-state residents, because they could not be expected to be aware of such massive fines. So ignorance is sometimes a defense. You lose.
Citation please.
Take a look at Lambert v. California, a close look at it as it pertains to ignorantia legis non excusat and mens rea. SCOTUS ruled specifically that this case wasn't an exception to ignorance as an excuse but rather it was a local ordinance that resulted in no action for the felon to be aware of the requirement. There was no intent of the defendant to commit an act that he didn't know was illegal. It's a subtle, but huge difference.
Quote:
Originally Posted by SDW2001
That remains to be seen. I tend to think otherwise. It may not have been reasonable to expect Gizmodo to know that the phone would be considered stolen when it was actually lost. The issue here is you're confusing moral obligations with legal ones. Of course they knew the finder wasn't the rightful owner, but that doesn't make the item legally "stolen" (or..it might..but Gizmodo probably didn't know this).
This is precisely where ignorantia legis non excusat and mens rea comes in. Gizmodo knew the circumstances behind the "found" phone...well maybe they didn't, but let's go with the idea that what Gizmodo has report is true, because their own claims are incriminating. They knew that reasonable efforts to return the phone had not been taken. They intended to purchase the phone for $5,000 under such circumstances. They did this.
They would have an excuse if they didn't know the phone was stolen, or shouldn't have had reasonable suspicion. Then, it's not ignorance of the law, it's lack of mens rea.
Quote:
Originally Posted by SDW2001
Thanks, professor. I was merely using the language in the article. I was not attempting to imply the law was dated and therefore not enforced or unknown. I was just being specific. As for "obscure," I suppose that's relative. Frankly, I don't see how someone would be expected to know that a lost item would be considered legally stolen in some circumstances, nor do I know if ignorance of said law is a defense in this case. But it might be...or it might be enough for the prosecutor to refrain from charging Gizmodo's editors.
"I don't see how someone would be expected to know that a lost item would be considered legally stolen in some circumstances"
How could this not be the case? Criminals would just go around saying, "I found this" or "I didn't know it was illegal".
Comments
...snip...
I think you're misunderstanding here--I am not saying the phone isn't or won't be considered legally "stolen." Despite the considerations I posted, here is my opinion:
--The prosecutor/courts will decide that the phone was "stolen" under the CA law that dates back to 1872.
--The person who sold the phone will be prosecuted.
--Gizmodo will face a civil suit involving the UTSA and misappropriation.
--Gizmodo employees will not face criminal prosecution for buying stolen property. My prediction (and that's all) is they'll get off on this one, because it's unlikely that they knew the phone was considered legally stolen under a relatively obscure statute.
One major point of law here that you're overlooking is that ignorance of the law is *never* an excuse. It's not going to work for Gizmodo any more than it will for the "finder". The only thing that could apply that would distinguish the two is if Gizmodo didn't know they were buying something that was stolen...not that they didn't know the law, but rather that they didn't know the "finder" wasn't the rightful owner of the property. Gizmodo claims they knew the "finder" found the phone and published the circumstances around the finding and failure to return.
Sections 485 and 496 of the California Penal Code aren't relatively obscure statutes. The "dating back to 1872" is misleading as many very important laws date far back in time (murder, rape, etc...). People are prosecuted by these laws all of the time. California Civil Code 2080 deals with the process of handling found property, and check your police station for how often they have auctions for property that was returned but then not claimed.
If there's some good that comes out of all of this, maybe a lot of people who find stuff will now realize that they have legal responsibilities if they take possession of what they find.
Lots of discussion about whether Gizmodo should have immediately returned the phone to Apple.
But that presumes Gizmodo knew Apple was the owner.
If a person leaves their phone in a bar, I would assume that person is the owner - not the manufacturer of the phone.
Seems like Gizmodo did an excellent job of finding a way to get attention, then Apple stepped forward and said that it was in fact the owner.
Then Gizmodo gave it to Apple.
Hey all, 1st post here, and an interesting topic ...
Lots of discussion about whether Gizmodo should have immediately returned the phone to Apple.
But that presumes Gizmodo knew Apple was the owner.
If a person leaves their phone in a bar, I would assume that person is the owner - not the manufacturer of the phone.
Seems like Gizmodo did an excellent job of finding a way to get attention, then Apple stepped forward and said that it was in fact the owner.
Then Gizmodo gave it to Apple.
It doesn't matter if it was an Apple prototype or fake knock-off. It also doesn't matter what Gizmodo thought in relation to this.
According to Gizmodo, the "finder" saw the Facebook profile of the engineer who lost the phone. The "finder" or Gizmodo could've easily contacted the engineer through Facebook.
But worse, they could've also given it to the bar manager, or at least notified the bar manager.
They should've either taken or sent it to Apple, if they believed it belonged to Apple, or taken or sent it to a police department.
The ONE thing you never do with found property is sell it before it's gone through the process outlined in detail in California Civil Code 2080.
This is what I don't understand and seems strangest to me. Unless these barstools have backs on them, I can only imagine leaving a jacket maybe hung on the back of a barstool.
But this wasn't a jacket. I mean, if you're sitting on the barstool, how do you leave it there? Are you sitting on it (the phone)? Is the super secret prototype in his back pocket being crushed? Or did he go to the bathroom and think, "I'll just leave my phone here so no one steals my seat." I just can't imagine the scenario where the phone got left on the barstool. On the bar...yes. On the floor...yes. But not on the barstool itself.
Exactly. If it fell out of your pocket, it's probably on the floor. If you set it down and stepped away, it would probably be on the bar (although that's pretty unlikely).
The only way I could think of someone finding it on a bar stool is if it was still in the owner's pocket - which adds a whole new dimension. Gizmodo offers large bribe for phone, someone goes to bar where Apple engineers hang out, sees engineer with interesting phone, and it magically goes from one pocket to another.
It's not hard to imagine someone being willing to steal a phone for $5 K - particularly since Gizmodo undoubtedly told them that under the Shield law, that they could never be forced to give up their name.
You guys are really focusing on this aspect of the story? I really can't understand why. There is no evidence it was made up...none whatsoever. For me, I don't even find it strange. I leave stuff all over the place, especially my phone.
Same to you!
Seriously, you are "calling the kettle black" here.
Not at all. My entire point is that we don't know what some of the determinations are going to be, including whether or not the phone will be considered legally stolen.
You say that "Not a single person has indicated the bar story is false," but you fail to mention that one person (the thief) is telling that story. The only other person who was even there was the Apple engineer that lost the phone, and he has been told not to talk about it so how could anyone contradict the story? You also (falsely) make it sound like the engineer agrees with you merely by his silence. Not true at all and you should know so.
I'm not saying it's a true story. I'm just saying I've seen no evidence that it's made up. Granted, the engineer can't come forward. But, that's not my problem. It doesn't make the story false. In fact, the story itself sounds plausible to me.
What I'm not going to do is run around tossing around crazy theft theories. You guys can have fun with that.
This is what I don't understand and seems strangest to me. Unless these barstools have backs on them, I can only imagine leaving a jacket maybe hung on the back of a barstool.
But this wasn't a jacket. I mean, if you're sitting on the barstool, how do you leave it there? Are you sitting on it (the phone)? Is the super secret prototype in his back pocket being crushed? Or did he go to the bathroom and think, "I'll just leave my phone here so no one steals my seat." I just can't imagine the scenario where the phone got left on the barstool. On the bar...yes. On the floor...yes. But not on the barstool itself.
The bar stools don't have backs on them. There are two types of stools there. The standard round wooden top and a square cushion top (it's a very hard cushion). Both stools are such that you can't have an iPhone in your front or back pocket when wearing jeans...at least I can't and from the looks of everyone else, you couldn't with any pants. Everyone there has an iPhone with a few Blackberries and maybe the odd retard phone.
It's a very serious beer bar with beer being served in .5, 1L or 2L sizes. Some of the beer has very high alcohol levels. The bar gets pretty wet with spilled beer, even if people leave their phones on the top of it. The bar can feel small and intimate with areas where the bar stools can be hidden away.
It wouldn't surprise me if the engineer placed the iPhone on a stool because he couldn't keep it in his pocket, didn't want it to get wet on the bar, or didn't want people to see it on the bar, and of course it could've been placed on the stool with other stuff, perhaps stuff that the engineer grabbed on the way out thinking he was also taking his phone.
Or maybe he did find a dry place on the bar, and had it there but someone intentionally swiped it when he wasn't looking.
If you're a phone thief, this would be a target rich environment.
One major point of law here that you're overlooking is that ignorance of the law is *never* an excuse.
That's absolutely incorrect. For example, Virginia enacted some draconian speeding fines a few years back. We're talking about $1,200 fines for speeding. It was determined that this law could not apply to out-of-state residents, because they could not be expected to be aware of such massive fines. So ignorance is sometimes a defense. You lose.
It's not going to work for Gizmodo any more than it will for the "finder". The only thing that could apply that would distinguish the two is if Gizmodo didn't know they were buying something that was stolen...not that they didn't know the law, but rather that they didn't know the "finder" wasn't the rightful owner of the property. Gizmodo claims they knew the "finder" found the phone and published the circumstances around the finding and failure to return.
That remains to be seen. I tend to think otherwise. It may not have been reasonable to expect Gizmodo to know that the phone would be considered stolen when it was actually lost. The issue here is you're confusing moral obligations with legal ones. Of course they knew the finder wasn't the rightful owner, but that doesn't make the item legally "stolen" (or..it might..but Gizmodo probably didn't know this).
Sections 485 and 496 of the California Penal Code aren't relatively obscure statutes. The "dating back to 1872" is misleading as many very important laws date far back in time (murder, rape, etc...). People are prosecuted by these laws all of the time. California Civil Code 2080 deals with the process of handling found property, and check your police station for how often they have auctions for property that was returned but then not claimed.
If there's some good that comes out of all of this, maybe a lot of people who find stuff will now realize that they have legal responsibilities if they take possession of what they find.
Thanks, professor. I was merely using the language in the article. I was not attempting to imply the law was dated and therefore not enforced or unknown. I was just being specific. As for "obscure," I suppose that's relative. Frankly, I don't see how someone would be expected to know that a lost item would be considered legally stolen in some circumstances, nor do I know if ignorance of said law is a defense in this case. But it might be...or it might be enough for the prosecutor to refrain from charging Gizmodo's editors.
That remains to be seen. I tend to think otherwise. It may not have been reasonable to expect Gizmodo to know that the phone would be considered stolen when it was actually lost. The issue here is you're confusing moral obligations with legal ones. Of course they knew the finder wasn't the rightful owner, but that doesn't make the item legally "stolen" (or..it might..but Gizmodo probably didn't know this).
That is really the issue. Assuming it was lost (most plausible), then the finder is not allowed to sell it (until certain conditions are met, time passed). The act of selling found property is itself what might then mean it is considered selling stolen property. If selling lost property is actually selling stolen property, then Giz buying it becomes buying stolen property.
It seems to me that judges decisions are not always based on the letter of the law, so it will be interesting to see what Giz's lawyers have to say. I don't think the spirit of the law would include convicting someone that bought it with the intent of restoring it to the original owner. They may have had other intentions as well, but that one is obvious.
That's absolutely incorrect. For example, Virginia enacted some draconian speeding fines a few years back. We're talking about $1,200 fines for speeding. It was determined that this law could not apply to out-of-state residents, because they could not be expected to be aware of such massive fines. So ignorance is sometimes a defense. You lose.
Citation please.
Take a look at Lambert v. California, a close look at it as it pertains to ignorantia legis non excusat and mens rea. SCOTUS ruled specifically that this case wasn't an exception to ignorance as an excuse but rather it was a local ordinance that resulted in no action for the felon to be aware of the requirement. There was no intent of the defendant to commit an act that he didn't know was illegal. It's a subtle, but huge difference.
That remains to be seen. I tend to think otherwise. It may not have been reasonable to expect Gizmodo to know that the phone would be considered stolen when it was actually lost. The issue here is you're confusing moral obligations with legal ones. Of course they knew the finder wasn't the rightful owner, but that doesn't make the item legally "stolen" (or..it might..but Gizmodo probably didn't know this).
This is precisely where ignorantia legis non excusat and mens rea comes in. Gizmodo knew the circumstances behind the "found" phone...well maybe they didn't, but let's go with the idea that what Gizmodo has report is true, because their own claims are incriminating. They knew that reasonable efforts to return the phone had not been taken. They intended to purchase the phone for $5,000 under such circumstances. They did this.
They would have an excuse if they didn't know the phone was stolen, or shouldn't have had reasonable suspicion. Then, it's not ignorance of the law, it's lack of mens rea.
Thanks, professor. I was merely using the language in the article. I was not attempting to imply the law was dated and therefore not enforced or unknown. I was just being specific. As for "obscure," I suppose that's relative. Frankly, I don't see how someone would be expected to know that a lost item would be considered legally stolen in some circumstances, nor do I know if ignorance of said law is a defense in this case. But it might be...or it might be enough for the prosecutor to refrain from charging Gizmodo's editors.
"I don't see how someone would be expected to know that a lost item would be considered legally stolen in some circumstances"
How could this not be the case? Criminals would just go around saying, "I found this" or "I didn't know it was illegal".
http://www.wired.com/threatlevel/2010/04/iphone-finder/