RACINE - Police Chief Kurt Wahlen agrees with former Mayor Gary Becker's assertion that police asked a city employee to make a copy of Becker's hard drive before they had obtained a warrant.

While the defense says that amounts to an illegal seizure and is grounds for dismissal of possession of child pornography and attempted sexual assault charges, Wahlen says his actions were legal.

Becker was charged in January with possession of child pornography, child enticement, attempted sexual assault of a child and misconduct in public office after a tech services employee told police about questionable images found on Becker's personal computer while he was doing repairs. After requesting the copy of the hard drive, police got a search warrant to look at the computer's contents.

In April, Becker asked the judge to throw out the charges, saying that the seizure of the hard drive was improper because police had not yet obtained a warrant.

Wahlen says he didn't need one.

"I see the defense's argument, but I don't see that they have a good argument," Wahlen said. "We were in the lawful place to see what we saw. We had to take action to keep evidence from being destroyed. We did no investigation, no look-see was done until the search warrant was obtained."

Becker's attorney, Patrick Cafferty, says that doesn't matter.

"When a layperson does something at the direction of law enforcement he's doing it on behalf of law enforcement and it's the same as if a police officer had done it himself," Cafferty said. "Without a warrant they would not have had the authority to search and seize his property."

Assistant District Attorney Robert Repischak said his understanding, based on state investigation reports, was that the tech services employee made a copy of the hard drive before he was asked to do so.

"They did ask him to make a copy, but he had already made the copy," Repischak said. "Their request was something that had already been done."

Prosecutors, in responses filed Monday to the defense motions, say that since the actions were taken prior to direction from the police, no search and seizure rights were violated. The state also says because Becker had turned the computer over to the employee for repairs he had no expectation of privacy for the computer's contents.

These two competing views - that the employee copied the hard drive at the direction of police or that he made it himself and then turned it over to law enforcement - will be argued in front of Judge Stephen Simanek next month.

"The purpose of the motion hearing itself is for the state to bring in live witnesses who will testify under oath about what they claim happened and the judge will have to make a credibility determination as to what exactly happened," Cafferty said. "It appears at this point that the state is denying that the computer technician had been directed by the chief of police to copy the hard drive and provide that to the police."

The motion hearing is scheduled for July 16.

Becker case: State responds to defense's motions

RACINE - The state responded Monday to several other motions filed by the defense in the case against former Mayor Gary Becker, who has been accused of possession of child pornography, misconduct in public office, child enticement and attempted sexual assault of a child. He was arrested in January after being caught in an Internet sting, where a state agent posed as a 14-year-old girl.

The motions and responses are as follows:

- Bringing a jury from outside Racine County. The defense has asked the judge to allow jurors to be brought here from outside the county to hear the case if it goes to trial, citing pre-trial publicity. The state says that is not necessary, because news coverage has not been of the type and quantity necessary to meet the standard for tainting the jury pool.

- Dismissing two counts added later. The defense said two counts should be dismissed because no preliminary hearing was ever held on the charges. The state says because the new charges are related to original charges there was no requirement to hold the hearing, where the state must show there is probable cause that a crime was committed and the defendant committed it.

- Separate charges into several cases. The defense wants the judge to separate the charges by type, with the possession of child pornography charges together, the enticement and attempted sexual assault charges together, and the misconduct in public office charge on its own. The state says since the charges are related and connected through the misconduct charge, they should remain together.

- Deficient search warrant. The defense says there were problems with the search warrant used by law enforcement to get permission to look at the contents of Becker's hard drive, including the assertion that photographs of clothed minors in conjunction with adult pornography does not meet the standards to grant the search warrant. The state says the defense's description of the images is stripped of its power, by not describing the sexually-suggestive nature of the poses or file names.

- Vague wording in the statute. The defense contends that the phrase "computerized communication system" is vague and that Becker could not have reasonably known that his alleged actions would violate the law. The state disagrees and says he "should have known that logging on to the Internet, engaging a perceived minor in sexually explicit conversations, with the alleged ultimate intent to meet that person to complete the sex acts, was an act prohibited by law."