White Collar Criminal Defense Group

You Have The Right To Remain Silent… And Refrain From Giving The Police Your Phone Passcode!

The Third Circuit’s recent decision in United States v. Curry, 2025 WL 2647753, (Sept. 16, 2025) limits the scope of a defendant’s Fifth Amendment protections in the digital age. The Court addressed whether evidence seized from a suspect’s cell phone must be suppressed after police obtained her passcode despite her clear request for counsel.

Case Overview

Defendant Curry was arrested in New Jersey on heroin and fentanyl charges. After being advised of her Miranda rights, she unequivocally invoked her right to counsel. Detectives acknowledged her request, but continued to ask her for the passcode to her cell phone. When Curry resisted, officers warned that if they were forced to obtain a warrant, their search of her phone could potentially erase her phone’s data. She subsequently relented and provided the passcode. Incriminating text messages were recovered from the phone and were used at trial which resulted in Curry’s conviction.

On appeal, Curry argued that both her passcode and the derivative evidence from her phone should have been suppressed under the Fifth Amendment and Edwards v. Arizona (once a suspect has invoked the right to counsel, all police-initiated interrogation must cease until counsel is made available.)

The Majority’s Analysis

Judge Matey, joined by Judge Krause, declined to suppress the phone evidence, reasoning that Miranda and Edwards provide prophylactic protections but do not create constitutional rights themselves. The Court went on to state that the Fifth Amendment bars only compelled testimony; whereas here, Curry voluntarily provided her passcode. The Court concluded that since there was no constitutional violation, the exclusionary rule from Wong Sun v. United States (the exclusionary rule extends not only to evidence obtained directly from an unconstitutional act, but also to derivative evidence) did not apply. The Court expressly refused to create a new rule excluding derivative evidence obtained after an Edwards violation.

The Dissent

Judge Restrepo dissented, arguing that once Curry invoked her right to counsel, Edwards made any further questioning a direct Fifth Amendment violation, not a mere procedural misstep. By eliciting her passcode, after a request for counsel, police exploited that violation. Under Wong Sun, both the passcode and the phone’s contents should have been suppressed.

Judge Restrepo highlighted the unique privacy implications of a search of one’s smartphone “the sum of an individual’s private life,” and cautioned that the majority’s approach invites police to ignore invocations of counsel, knowing that the derivative evidence will remain admissible.

Practical Implications

Most Americans routinely carry phones packed with sensitive communications, often blurring the line between personal and professional. Judge Restrepo’s dissent provides a roadmap for future challenges to the admission of cellphone evidence, particularly as the Supreme Court may be called upon to reconcile Edwards, Wong Sun, and modern digital privacy concerns.

United States v. Walters: Third Circuit Clarifies Client Authority Over Stipulations To Offense Elements

The Third Circuit in United States v. Walters (Sept. 4, 2025) recently addressed a recurring question in federal criminal practice: must a client consent to a stipulation as to an element of a charged offense? The Court’s answer underscores the constitutional limits of defense counsel’s authority and provides important guidance for white collar practitioners.

Case Overview

Walters was charged under 18 U.S.C. § 922(g)(1) and refused to stipulate that he was a felon and that he was aware of his status. His lawyer, believing such a stipulation was strategically advantageous, sought to enter the stipulation over Walters’ objection. The district court rejected counsel’s attempt, and the government was permitted to introduce Walters’ prior convictions and Walters was subsequently convicted. On appeal, the Third Circuit affirmed.

The Holding

The Third Circuit held that under the Sixth Amendment, the defendant, not counsel, has the final word on whether to concede substantive elements of the charged offense. Even in instances where counsel believes concession is the better trial strategy, the decision to admit facts that go directly to criminal liability belongs to the accused.

The Third Circuit made a point of distinguishing between substantive elements of a crime, which relate to the defendant’s criminal conduct or state of mind, and jurisdictional elements, which are technical prerequisites that enable federal prosecution (such as FDIC insurance in bank robbery cases). While the former require client consent, the latter may still be stipulated to by counsel without client approval. Thus, common stipulations in white collar cases such as those establishing the interstate wire requirement in wire fraud prosecutions are unaffected.

Strategic Decisions Still Reserved for Counsel

The Walters decision provides a useful reminder of the division of authority, between counsel and their client, in criminal defense. Strategic and tactical trial decisions remain within the control of counsel. These include choices such as what arguments to pursue, which witnesses to call, what evidentiary objections to raise, whether to file pretrial motions, how to cross-examine witnesses, and what themes to emphasize at opening and closing. By contrast, fundamental objectives, such as whether to plead guilty, testify, appeal, or concede substantive elements of guilt are reserved to the client.

Practical Implications for White Collar Practice

For white collar practitioners, Walters serves as a caution that stipulations involving substantive elements should never be entered without the client’s express approval. At the same time, the decision preserves efficiency in trials by allowing counsel to continue stipulating to jurisdictional or technical elements, a common and prudent practice in complex Federal fraud cases. Counsel should ensure the record reflects the client’s position on any stipulation touching on substantive elements, thereby avoiding later disputes or appellate challenges.