They're clearly in the possession of stolen property - finding something in California, knowing who it belongs to (which the original "finder" knew) and not returning it, constitutes theft. It's theft on the part of the original owner and also Gizmodo for having knowingly acquired stolen property.

I cannot believe the complete lack of journalistic integrity, professionalism of any kind and the sheer contempt for the affected parties Gizmodo has shown.

All things considered, Apple has sent them a very short and sweet letter asking for the phone back, even though it's clear as day that Gizmodo's back-story is a giant turd of a lie. Even if it were a 100% true account of what went down, it doesn't exculpate them from the involvement in dealing in stolen property.

At any point in time anyone involved could have put that phone in a box and addressed it to 1 Cupertino with postage due on delivery. Anonymously even. They attempted to return it by calling Apple support? While the campus was no more than 20 miles away? Yeah, right.

Some people speculate this was a plant orchestrated between Apple and Gizmodo. I don't think Apple would involve themselves in something like this willingly.

I also find it very (very) odd that a DVT prototype (as marked on the device, meaning a "development prototype") would be allowed off the Apple campus. Normally DVT prototypes are not allowed in the wild. They're always to be kept in secure environments, whether it be in an Apple building or that of a partner, such as AMD/ATI. I suppose the situation with the iPhone may be different by necessity of testing its radio.