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Defense: Government Puts Burden On Reality Winner To Excuse FBI Violating Her Rights

Defense attorneys for NSA whistleblower Reality Winner contend whether she asked to end her FBI interrogation or leave her home when agents arrived has “little bearing” on whether she was in custody and deserved to be read her rights.

Winner is an NSA contractor who is accused of mailing a classified document on Russian hacking to The Intercept. She was charged with violating the Espionage Act and is currently in detention awaiting trial.

Back in August, Winner’s attorneys filed a motion to suppress statements made to FBI agents hours before she was arrested. The judge granted the defense’s request for a hearing, which will occur on February 27.

On June 3, the government [PDF] maintains FBI agents came to Winner’s home in Augusta, Georgia, executed a search warrant, and “interviewed” her. Winner “voluntarily” agreed to talk to agents and was not under arrest when she made statements. She “never asked to terminate her interview, speak with an attorney, or otherwise remove herself from the agents’ presence.”

“The objective facts of the interview environment, as well as the defendant’s own conduct, establish that a reasonable person would have felt free to terminate the encounter,” according to the government.

However, Winner’s defense believes the government’s logic “improperly seeks to flip the burden” on Winner, “imposing a requirement that a defendant make affirmative statements demanding her rights or actually depart the premises and, in the absence of these facts, no custodial interrogation can take place. That is simply not the law.”

“The government does not dispute that it never advised Ms. Winner that she was free to leave or that she was not in custody,” Winner’s defense adds. “To the contrary, the government’s actions would have led any reasonable person to believe that she was not free to leave.”

Winner’s home was “swarmed” with FBI agents, “most of whom were armed, and took Ms. Winner’s phone and car keys shortly after their arrival. Where was Ms. Winner supposed to go without her car or the ability to order alternative transportation from her phone? Even if there were locations to which Ms. Winner could wander on foot, would any reasonable person believe in these circumstances that she could just walk out the door? Of course not.”

If Winner’s defense succeeds in suppressing statements made to FBI agents, it could be a key turning point in her case. A transcript indicates Winner made multiple statements that were incriminating or seemed to take responsibility for releasing the report to the Intercept without authorization.

The law turns on whether the court agrees Winner was in “custodial interrogation” when agents were in her home asking her to “voluntarily” provide information on a crime they believed she committed.

Several factors come into play that include: where she was questioned, the length of questioning, statements during questioning, whether law enforcement had weapons, whether she was ever touched, whether language was used to compel compliance, whether she was “unambiguously advised” she was free to leave, whether law enforcement ever restrained her, and whether she was released after questioning.

Keeping a detained suspect “in the dark” about their arrest is likely to “yield the pressures,” which the pivotal case Miranda warned against, and make a situation “custodial.”

“Where a suspect is confused or unclear of her custodial status, ‘she may feel compelled to submit to police questioning for fear that her refusal to cooperate will reduce her chances for release or other favorable treatment,'” Winner’s defense contends, citing case law.

Winner submitted a declaration [PDF] to the court on August 29. It contained her version of what happened the day she was interrogated and later arrested.

She recalls coming home from the grocery store. Two “armed male FBI agents” were outside. She claims she was advised the FBI had a search warrant for her house, car, and person.

Eight additional armed male FBI agents entered her front door to “rummage” through her house.

The two FBI agents she first encountered asked to speak with Winner “in a small unfurnished back room,” which Winner said was no more than seven by nine feet. “I told the agents that the room was ‘creepy’ and ‘weird.’ She did not like going back there. But that’s where the agents insisted on doing the “interview.”

Winner says the door to this room was practically shut. The two agents stood in front of the door blocking the exit.

After the agents asked her questions related to the alleged disclosure of classified information, she asked if the FBI agents planned to arrest her. The agents claimed they did not know, maintaining an air of uncertainty.

The interrogation lasted about twenty-five minutes until she was “instructed to stand out” in her front yard. Then, she was “told” to go stand in the fenced yard with her dog. Not long after, two female agents arrived to arrest her.

In spite of the presence of FBI agents executing search warrants and controlling her movement around her own home, the government asserts any reasonable person would have felt like they could “terminate the encounter” at any time, like if she had asked the FBI to leave immediately they would have listened to her.

Winner’s defense maintains she was informed the FBI had a search warrant for her person, but no agent attempted to immediately execute that search. It lingered over the entire “interview.”

The government, on the other hand, insists the “search” of Winner was complete after she provided her cellphone to FBI agents, which the defense finds dumbfounding.

“This makes no sense given the sequence of events,” the defense declares. “Ms. Winner surrendered her cellular phone before the agents informed her they had a search warrant for her person. When the agents subsequently told Ms. Winner they had a warrant to search her, they did not state that the warrant had already been executed by obtaining Ms. Winner’s phone.”

“Even if the agents on the scene actually believed that they had executed that warrant in full by obtaining the phone (which is highly doubtful), a reasonable person in Ms. Winner’s position certainly would not think that,” the defense adds. “Rather, any reasonable person would believe, as Ms. Winner did, that the search warrant for her person would be executed when the agents conducted a physical pat down or frisk.”

Winner’s trial remains scheduled for March 21, but a status report from January 8 indicated “numerous pretrial matters” made it nearly impossible for the government and defense to maintain the previously agreed upon timeline for the case.

Kevin Gosztola

Kevin Gosztola

Kevin Gosztola is managing editor of Shadowproof. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure."