The search was apparently connected with the Apple iPhone 4G prototype that Gizmodo obtained and posted images, video, and teardown analysis of last week.
In a letter to the detective on the case, Gaby Darbyshare, COO of Gizmodo's parent, Gawker Media, states "-- under both state and federal law, a search warrant may not be validly issued to confiscate the property of a journalist." She goes on to site section 1524(g) of the CA Penal Code.
While Darbyshire is indeed correct about that penal code, her interpretation isn't necessarily correct if Jason Chen and/or Gizmodo are themselves being investigated for theft, according to CA Penal Code Section 485, which states:
One who finds lost property under circumstances which give him knowledge of or means of inquiry as to the true owner, and who appropriates such property to his own use, or to the use of another person not entitled thereto, without first making reasonable and just efforts to find the owner and to restore the property to him, is guilty of theft.So, if Gizmodo's original story, implausible as it was, is true, that Apple engineer Gray Powell lost the phone in a bar, and the person who found it knew enough to sell it to Gizmodo for $5K, then it would appear that the finder and Chen/Gizmodo may have indeed gone afoul of the law, journalists or not.
On the other hand, if the district attorney doesn't intend to charge Chen or Gizmodo, then the search may very well be illegal. There's quite a bit of blogospheric debate going on about all this, but it seems pretty clear to me.
The only thing that still bugs me is that Apple let that prototype out of their sight long enough for Powell to leave it in a bar, and that the whole thing wasn't an Apple PR stunt, as I originally thought. Hard to believe. But you can bet that Jason Chen and Gizmodo are hating CA Penal Code Section 485 right about now.