FBI agents who questioned Reality Winner while they were executing search warrants never told her she was “free to leave,” a fact that could determine whether statements she made are suppressed.
Winner is an NSA contractor accused of mailing a classified document on alleged Russian hacking of voter registration systems 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 because Winner was never read her Miranda rights,
Judge Brian Epps convened a five-hour hearing at the Federal Justice Center in Augusta, Georgia, where the defense and government cross-examined two FBI agents who were present on June 3 during the raid. He gave the defense and government quite a bit of latitude to ask the agents whatever questions they wanted.
Special Agent Justin Garrick, who authored an affidavit for Winner’s search warrant application and the criminal complaint, testified that he never told her she was free to leave. He also never dissuaded her from asking FBI agents permission when she wanted to move about her home while they were present.
There was an email the night before search warrants were executed that indicated the Counterintelligence and Export Control Section (CES) of the Justice Department approved of agents arresting Winner if she happened to plea or admit to an unauthorized disclosure. Another email stated agents would effect the arrest and search of her home.
Matthew Chester, one of Winner’s defense attorneys, argued the agents made a “tactical decision” not to arrest her so she would talk with them.
Epps asked Garrick if he ever received any instructions on when to Mirandize someone in the context of their home. In the context of executing a search warrant, Garrick never considered the need to inform Winner that she was “free to leave.” He told the judge he never contemplated Mirandizing her.
The prosecutor, Jennifer Solari, repeatedly emphasized the friendliness or politeness of the FBI agents, as well as the “voluntary” aspects of the encounter, to argue Winner’s rights were not violated.
Solari consistently reminded the court that a battering ram was not used, guns were never brandished, agents did not use abusive language, Winner was never told to get down on the ground, and Garrick and another agent, Wally Taylor, never were in her face demanding she answer specific questions.
It was almost as if the government wanted the judge to overlook the agents’ conduct because there were worse ways they could have violated her rights that did not occur.
The defense emphasized the fact that Winner’s movements were controlled at all times, and she was the FBI’s only suspect, even though the document at issue was printed six times. They also referred to the position of the government—that Winner is a “flight risk,” a potential target of foreign adversaries, and a possible danger to the community, who should remain in jail until trial.
A number of times, Chester raised the following issue: If Reality Winner is a danger to the community and potential target of foreign adversaries, which was true before the searches on June 3, why would FBI agents ever have allowed her to leave?
In fact, Garrick indicated that a surveillance team was stationed and ready to follow her if she left her home.
The government firmly maintains any “reasonable person” would have felt free to terminate the encounter, but Winner was never informed of her custodial status. Garrick testified that she was never told she was not in custody.
During closing argument, the government went through a laundry list of factors the defense claimed as evidence her rights were violated and said very few of these factors were relevant to the issue. Yet, Solari stated it certainly would have been helpful if agents had informed her she was “free to leave.”
When the proceedings concluded, Epps called the proceedings a “shining example of how the adversarial process is supposed to work.”
Defense attorneys will submit another brief with further arguments based on the day’s proceedings. The government will respond. That means it will be about a month before the judge rules on the motion to suppress statements.
If the defense manages to win, it could be pivotal. She made several incriminating statements, including what appeared to be a confession. The defense would certainly benefit if the government was unable to use what she said because FBI agents failed to respect her rights.