The affidavit that brought Becker to trial...

Gary Becker, before the hearing began

One of the issues argued at Gary Becker's court hearing Thursday was the adequacy of the affidavit used to obtain the search warrant that allowed police to go through two of his computer hard drives.

Bad day for Gary Becker

Until that point, all the child pornography evidence that existed against Becker was seven photos found by computer technician Michael Ferderer -- photos that, by themselves, are not child pornography, according even to the affidavit itself.

The affidavit, submitted by Racine Deputy Chief Thomas Christensen, was not made public until the end of the court hearing, so let's go through it before recounting the arguments heard in court, followed by Judge Stephen Simanek's ruling. It's an 11-page document, divided into three sections:

1. Qualifications of DCI Special Agent Eric Szatkowski, who prepared it;
2. Background on the use of computers for child exploitation; and
3. Summary of facts establishing probable cause.

1. In six paragraphs taking up two pages, Szatkowski is described as a senior special agent since 1991, "with extensive experience working complex criminal investigations, including internet crimes committed against children, death investigations, cold case homicides, murder for hire, sexual assault, fugitive apprehension and drug trafficking."

He has often posed "as an underage boy or girl on the internet, has been responsible for the arrest of approximately 150 individuals from Wisconsin and across the United States" for computer sex crimes. He has engaged in "thousands of undercover on-line communications with suspected predators of children" and interrogated approximately 150 individuals involved in the sexual abuse and / or exploitation of children. He's had more than 420 hours of training on the subject, and has instructed "more than 160,000 people" on the topic of sexual predators of children on the internet.

2. The next four pages have 10 paragraphs describing the mechanics of child pornographic distribution over the internet, at times written as though introducing a computer for the first time: "Producers of child pornography often use a device known as a scanner to transfer photographs into a computer... Many digital cameras also can be connected directly to a computer... Individuals that possess, receive, transfer and distribute child pornography use communication devices known as a modem..."

The technical explanation continues: Szatkowski explains that "a perpetrator's child pornography collection is not diminished if he or she distributes the pornography to others via computer" and that images can be easily transferred via the internet and stored. "Harddrives with a capacity of one gigabyte are not uncommon." Furthermore, "a forensic examination of such a hard-drive can identify and retrieve such images, including those of child pornography, even if those images have been deleted by the computer operator."

Then he turns to the perpetrators. "Individuals involved in child pornography will use places that they consider private and secure to receive, download, store and / or view the pornographic images... most often... the individual's residence." And, "these images provide them with sexual stimulation, gratification and satisfaction. Images of child pornography allow them to fuel their fantasies and validate their behavior, which society at large finds abhorrent." And, "Special Agent Szatkowski also knows that many convicted child sex offenders have had multiple victims over a period of many years before being caught... (and) many of these offenders have been caught as a result of investigations that began as child pornography investigations."

3. The summary of facts establishing probable cause describes in detail seven images taken from Becker's hard drive and saved to a computer disk by technician Michael Ferderer. The description that got the most attention during the hearing, of the only photo approaching child pornographic status, was recited multiple times by the various attorneys. The affidavit says: "One (1) color photograph of a pubescent girl, approximately between the ages of 9 and 12, lying on her stomach, with her head supported by her arms placed under her chin; the girl is looking back towards the camera; she is wearing a pair of pinkish-white panties with a floral design, exposed because her blue skirt is hiked up over her buttocks; her bare legs are exposed from the bottom of the panties to just above the knees; her panties, covered buttocks , and legs are the focal point of the image; the image also has the file name '@ great panties.' "

Szatkowski notes that, according to Ferderer, the picture was saved in a folder on Becker's hard drive. "This is significant," he writes, "obtaining this image therefore was no accident or mistake." And, "Szatkowski does not believe that the computer user would save only one such image, in that persons who save sexually provocative pictures usually do so in large quantities."

Other images, some clearly pornographic, others simply suggestive, on Ferderer's disk were of naked females, whose ages were described variously as "possibly late teenage years," "approximately 14-16," "adult," "late teens to early 20's," and so on. One, with the file name "-1dau" could be an adult, Szatkowski writes, but the filename "is likely an abbreviation for '1daughter,' a term commonly used by pornographers, including child pornographers, to indicate a fetish for incest."

The affidavit concludes: "Based on his training and experience, and the images and file names described above, Szatkowski believes there is probable cause to search the contents of the hard drives described herein for evidence of the crime of child pornography. Szatkowski knows that although he has not observed images of child pornography on the CD prepared by Technician Ferderer, (emphasis added) he believes that when the images of children he observed are taken in context with the adult or barely legal pornographic images, it is reasonable to allow a search to look for images of child pornography."

Becker attorney Pat Cafferty's argument referred directly to the statement in the affidavit's 28th paragraph, the one in boldface directly above this: "He fails to establish probable cause; there's basically some hunches, some suspicion." Asst. DA Robert Repischak responded by pointing to Szatkowski's experience and expertise, and said, "We acknowledge that the images he saw were not blatant, hard-core child pornography," but noted that "reasonable inferences" could be made from the panties image, the one picture of a pubescent girl. Cafferty argued that even that image was not blatant child pornography. "The inferences are so far upstream from the facts," he said.

Which left the argument to Judge Simanek, who noted that although some of the seven images -- of adults -- were pornographic, "it is not a crime to possess or watch pornography" (which, he said, is prevalent even on "late-night TV.") But Simanek said he relied on a "commonsense approach," and considering the photos of naked teens on the CD he he fell back on Supreme Court Justice Potter Stewart, echoing his statement in a 1964 obscenity case, "I know it when I see it."

"There's enough here," Simanek concluded, denying Cafferty's motion for suppression of the evidence subsequently found on Becker's computers.

(Aside: There may be some irony here in Simanek's reference to the Stewart standard, in that the high court's ruling actually reversed an obscenity judgment against the French film, "The Lovers," as I'm sure Simanek knows.)