PRECEDENTIAL

       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT
                 _____________

                     No. 22-2501
                    _____________

           UNITED STATES OF AMERICA

                           v.

                   RAJERI CURRY,
                            Appellant
                   _______________

     On Appeal from the United States District Court
             for the District of New Jersey
             (D.C. No. 1:19-cr-00677-001)
      District Judge: Honorable Robert B. Kugler
                    ______________

                 Argued: July 30, 2024
                   ______________

Before: KRAUSE, RESTREPO, and MATEY, Circuit Judges

          (Opinion filed: September 16, 2025)
Gilbert J. Scutti [ARGUED]
504 Centennial Boulevard
P.O. Box 1375
Voorhees, NJ 08043
       Counsel for Appellant

Mark E. Coyne
Jane M. Dattilo [ARGUED]
Office of United States Attorney
970 Broad Street
Room 700
Newark, NJ 07102
       Counsel for Appellee
                      _______________

                OPINION OF THE COURT
                    _______________

MATEY, Circuit Judge.

       After Rajeri Curry was arrested for distributing heroin
and fentanyl, she requested an attorney. The investigators then
asked to examine her cell phone, and Curry consented,
providing the phone’s passcode. Curry objects to prosecutors
using incriminating materials found on her phone, but we
cannot exclude evidence to remedy a violation of the
prophylactic rule announced in Edwards v. Arizona, 

 (1981). And seeing no other errors, we will affirm the
District Court’s judgment.




                               2
                              I.

                              A.

        This case began with an investigation into drug
trafficking by brothers Al-Tariq and Shadee Brown. Curry was
Al-Tariq’s repeat customer, often buying heroin and fentanyl
in bulk based on the “brands” stamped on the packaging. After
Al-Tariq died, Shadee stepped in as Curry’s contact, a
partnership Curry called the “rich gang.” Supp. App. 975.

       In January 2018, police executed a search warrant at
Curry’s apartment where they recovered 300 packets of heroin
stamped “body count” and “DOA.” Supp. App. 287–88. Still,
Curry kept buying, purchasing more “body count” from
Shadee on May 29, 2018. Three days later, officers responded
to a fatal heroin and fentanyl overdose. Surveillance footage
showed Curry executing a hand-to-hand transaction with the
victim just four hours before he was found dead with four bags
of “body count.”

       Curry was arrested, and police seized the iPhone she had
with her. After being read the statement suggested by Miranda,
Curry told detectives “I want my lawyer.” Interview Video
3:40–44. 1 They responded “okay, that’s fine,” Interview Video
3:44–45, and asked if she would “give us consent for your
phone,” Interview Video 4:43. Curry declined, prompting a
detective to explain that if she refused, they planned to get a
warrant and extract the phone’s data. A process, he added, that
risked erasing the phone’s contents. Concerned she would lose

       1
        The video of Curry’s interview is on file with the
Clerk’s Office.




                              3
her files, Curry gave the detectives her passcode and signed a
consent form to look through the phone. All agree the
detectives did not question Curry about the charged offenses.

                               B.

       Curry was indicted for conspiring to distribute heroin
and fentanyl, in violation of 

, 841(a)(1) and
(b)(1)(C), and possessing with intent to distribute heroin, in
violation of § 841(a)(1) and (b)(1)(C). 2 Prior to trial, the
District Court denied Curry’s motion to suppress the evidence
extracted from her phone, which included text messages with
Al-Tariq and Shadee. The United States introduced that
evidence at trial, along with Curry’s prior drug convictions to
prove her knowledge and lack of mistake.

       At the close of the prosecution’s case, the District Court
reserved decision on Curry’s motion for a judgment of
acquittal on the conspiracy count. After the jury convicted
Curry of conspiracy to distribute and possession with intent to
distribute, the District Court denied the motion, finding the
United States had sustained its burden on every element of a
controlled-substance conspiracy.

       At sentencing, the District Court calculated a
Guidelines range of 210 to 262 months’ imprisonment using
sentencing guideline 4B1.1’s alternate offense level for “career
offenders.” See U.S.S.G. § 4B1.1. Over Curry’s objection, the

       2
         The grand jury also charged Curry with distributing a
substance containing heroin and fentanyl, resulting in death, in
violation of § 841(a)(1) and (b)(1)(C). But the jury did not
reach a verdict on this count.




                               4
District Court concluded that guideline 4B1.1 applied because
Curry had two prior New Jersey felony convictions for heroin
distribution. The District Court sentenced Curry to 216
months’ imprisonment. 3

                              II.

      Curry says the information found on her phone could
not be used against her. To understand why we disagree, a
summary of the two sources that could support suppression is




      3
         The District Court had jurisdiction under 

, and we have jurisdiction under 

(a)
and 

. On the motion to suppress, we review
the District Court’s factual findings for clear error and its
applications of law de novo. See United States v. Jackson, 

, 1217 (3d Cir. 2024). Like the District Court, we
review the motion for judgment of acquittal “in the light most
favorable to the prosecution to determine whether any rational
trier of fact could have found proof of guilt beyond a
reasonable doubt based on the available evidence.” United
States v. Kousis, 

, 236 (3d Cir. 2023) (quoting
United States v. Smith, 

 (3d Cir. 2002)). We
review the District Court’s admission of Rule 404(b) evidence
for abuse of discretion. United States v. Scarfo, 

,
178 n.35 (3d Cir. 2022). And we review an interpretation of the
Sentencing Guidelines de novo. United States v. Lewis, 

, 767 (3d Cir. 2023).




                              5
useful. And both, Constitution and caselaw, confirm no error
occurred.

                                A.

        Begin with the Fifth Amendment, which prevents the
United States from compelling a person “in any criminal case
to be a witness against himself.” U.S. Const. amend. V. This
Self-Incrimination Clause “permits a person to refuse to testify
against himself at a criminal trial in which he is a defendant,”
Minnesota v. Murphy, 

 (1984), and “not to
answer official questions put to him in any other proceeding,
civil or criminal, formal or informal, where the answers might
incriminate him in future criminal proceedings,” 

 (quoting
Lefkowitz v. Turley, 

 (1973)). But “[t]he Fifth
Amendment, of course, is not concerned with nontestimonial
evidence,” Oregon v. Elstad, 

 (1985), so it
only applies to “evidence of a testimonial or communicative
nature,” Schmerber v. California, 

 (1966).
And “in order to be testimonial, an accused’s communication
must itself, explicitly or implicitly, relate a factual assertion or
disclose information.” Doe v. United States, 

(1988). If a person is compelled to provide testimonial
evidence in one of these settings, the evidence ordinarily
cannot be admitted at trial. 4 Elstad, 470 U.S. at 305–06.

       4
        There is a separate line of cases addressing the
admissibility of involuntary statements under the Due Process
Clauses of the Fifth and Fourteenth Amendments. See
Dickerson v. United States, 

 (2000) (“[F]or
the middle third of the 20th century our cases based the rule
against admitting coerced confessions primarily, if not




                                 6
        Curry does not argue that her interactions with the
detectives “compelled” her to speak. That is understandable, as
the bar for compulsion under the Fifth Amendment is high, 5
requiring a defendant to show that his “will was overborne in
such way as to render his confession the product of coercion,”
Arizona v. Fulminate, 

 (1991), based on “the
totality of all the surrounding circumstances,” Dickerson v.
United States, 

 (2000) (quoting Schneckloth
v. Bustamonte, 

 (1973)). But that is not the
end of her claim, because Miranda v. Arizona, 

(1966) grafted onto the Self-Incrimination Clause “a set of
prophylactic measures to protect a suspect’s Fifth Amendment
right from the ‘inherently compelling pressures’ of custodial
interrogation.” Maryland v. Shatzer, 

 (2010)
(quoting Miranda, 

). As a result, law
enforcement must explain that a suspect can choose to remain
silent, or consult an attorney, before agreeing to a custodial
interrogation. Miranda, 

. 6




exclusively, on notions of due process.”). But they are rarely
seen, with courts ordinarily reaching for the more familiar
Miranda framework. See Elstad, 470 U.S. at 304–05;
Dickerson, 

.
       5
         To be clear, that bar is only high absent legal process,
such as a subpoena. Schmerber, 384 U.S. at 763–64.
       6
         Because Miranda applies even when a person is not
compelled to speak, see Michigan v. Tucker, 

(1974), a Miranda violation does not alone offend the Due
Process or Self-Incrimination Clauses, see Vega v. Tekoh, 

, 142–50 (2022).




                               7
                              B.

       Turn next to caselaw, which creates an important
distinction between “direct” and “derivative” evidence. Curry
is not much concerned about her conversation with the
detectives regarding her phone and its passcode. Rather, she
seeks to suppress “evidence derived directly and indirectly
therefrom,” Kastigar v. United States, 

(1972), like the incriminating text messages she shared with
Al-Tariq and Shadee. A brief explanation of the standards
applicable to different kinds of evidence is necessary.

                               1.

       Sometimes a defendant seeks to suppress evidence that
has a direct relationship to the alleged unlawful governmental
conduct. 7 For example, suppose an investigating officer
discovers a suspect wearing an empty shoulder holster and asks
“where the gun was,” prompting the suspect to “nod[] in the
direction of some empty cartons and respond[], ‘the gun is over
there.’” 8 The defendant’s response then results from the
alleged improper interrogation, and Miranda’s prophylactic
exclusionary rule applies. See United States v. DeSumma, 

 (3d Cir. 2001). 9

       Compare these direct statements to something
derivative, what Justice Frankfurter called the “fruit of the

       7
          See 3 Wayne R. LaFave et al., Criminal Procedure
§ 9.3, at 476 (4th ed. 2015).
        8
          New York v. Quarles, 

 (1984).
        9
          Unless some exception applies. See, e.g., Quarles, 

.




                               8
poisonous tree.” 10 As when, continuing our example, the
prosecution seeks to offer into evidence the gun found among
the empty cartons. Whether to exclude that derivative evidence
turns on a further question: does the defendant state a
constitutional violation or the neglect of a prophylactic rule?

        Actual constitutional violations are handled under a
single standard: they render both direct and derivative evidence
inadmissible. Wong Sun v. United States, 

(1963). 11 The same is true for direct evidence collected afoul
of Miranda. DeSumma, 

. But “derivative
evidence secured as a result of a voluntary statement obtained
before Miranda warnings are issued” is not excludable. 

That is because Miranda sweeps much further than our
constitutional protections, reaching statements lacking the
compulsion necessary under the Fifth Amendment. Elstad, 470
U.S. at 306–07. So voluntary, but unwarned, statements may
be admitted for limited purposes, like impeachment, Harris v.
New York, 

, 224–26 (1971), whereas use of an
involuntary statement is prohibited by the Fifth Amendment,
Mincey v. Arizona, 

 (1978). And evidence
discovered because of a voluntary unwarned statement is not
suppressed as it would be for an involuntary statement. Elstad,
470 U.S. at 305–07.

       10
           Nardone v. United States, 

 (1939).
       11
           See also Nix v. Williams, 

, 441–42
(1984) (extending Wong Sun’s exclusionary rule to a Sixth
Amendment violation); Chavez v. Martinez, 

(2003) (plurality opinion) (“[T]hose subjected to coercive
police interrogations have an automatic protection from the use
of their involuntary statements []or evidence derived from their
statements . . . .”).




                               9
                               2.

       One final piece of the puzzle arrives in “a second layer
of prophylaxis.” McNeil v. Wisconsin, 

(1991). Under Edwards, when a suspect asks for counsel, he
“is not subject to further interrogation by the authorities until
counsel has been made available to him, unless the accused
himself initiates further communication, exchanges, or
conversations with the police.” 451 U.S. at 484–85. If police
interrogate a suspect who asked to speak with an attorney,
courts treat direct evidence of that conversation as if no
Miranda warning was given, even if the suspect otherwise
validly waived his rights. Arizona v. Roberson, 

,
681–82 (1988). Edwards acts as a “reinforce[ment]” of
Miranda’s prophylactic protections, Minnick v. Mississippi,

 (1990), “designed” to reiterate the
prescribed procedures, Michigan v. Harvey, 

(1990). But, like Miranda, Edwards “is not a constitutional
mandate, but judicially prescribed prophylaxis.” Shatzer, 

. 12 That is because, as with Miranda, to substantiate
an Edwards violation, a defendant need not show that a
statement was “compelled” under the Fifth Amendment. So a
statement can be constitutionally voluntary, yet inadmissible
because of Edwards.




       12
           The dissent implies that a violation of
Edwards necessarily amounts to a violation of the Fifth
Amendment. But that argument is foreclosed by Shatzer and
the reasoning of numerous other decisions we outline.




                               10
                              C.

       Applying this framework, Curry cannot suppress the
evidence found on her phone. That evidence is not derivative
of a constitutional violation because Curry voluntarily
provided the detectives with her passcode, and the “Fifth
Amendment prohibits use by the prosecution in its case in chief
only of compelled testimony.” Elstad, 470 U.S. at 306–07.
With no constitutional concerns, Wong Sun’s automatic
exclusion of derivative evidence does not apply.

       Recognizing this limit, Curry asks for a new rule that
would also exclude derivative evidence for Edwards
violations. But the Supreme Court has created such a rule “only
where its benefits outweigh its costs.” Vega v. Tekoh, 

, 151 (2022) (quoting Shatzer, 

). That
analysis carries “a strong presumption against expanding”
Miranda’s prophylactic rules. United States v. Patane, 

 (2004) (plurality opinion). One this Court and
the Supreme Court have repeatedly recognized by rejecting
requests to suppress derivative evidence for Miranda
violations. Elstad, 

; Tucker, 

;
DeSumma, 

. And as “a second layer of
prophylaxis,” Edwards stands even further from the
constitutional right that could justify Wong Sun exclusion.
McNeil, 

. Nor would Curry’s proposed practice
offer much help, as officers would simply have asked for her
cell-phone passcode before they mentioned Miranda,
confident the contents would not be suppressed as the fruits of




                              11
an unwarned statement. See DeSumma, 

. So the
District Court did not err. 13

                              III.

        Curry raises several other issues, none showing error.
First, she argues the District Court improperly denied her
motion for judgment of acquittal on the conspiracy count.
“[O]n the defendant’s motion,” a district court “must enter a
judgment of acquittal of any offense for which the evidence is
insufficient to sustain a conviction.” Fed. R. Crim. P. 29(a). To
prove Curry was a member of the conspiracy, the United States
had to establish “a shared unity of purpose between the alleged
conspirators,” “an intent to achieve a common goal,” and “an
agreement to work together toward that goal.” United States v.
Bailey, 

 (3d Cir. 2016). Evidence that supports
these elements includes the duration and nature of the
coconspirators’ relationship, quantity of drugs involved,
established payment methods, and standardized transactions.
See 

       Curry claims the prosecution’s presentation fell short
and showed no more than “a simple buyer-seller relationship.”
United States v. Gibbs, 

 (3d Cir. 1999). But
“[v]iewing the record, as we must, in the light most favorable
to the prosecution, ample evidence supported” Curry’s
conviction. United States v. Garner, 

, 274 (3d Cir.
2020) (citation omitted). Curry began texting with Al-Tariq on
March 16, 2018, and after his death that month, she started

       13
          For this reason, we need not address the District
Court’s alternative bases for denying the motion to suppress.
United States v. Agnew, 

 (3d Cir. 2005).




                               12
texting Shadee. Scattered across these messages are displays of
trust, like Curry thanking Shadee “for treating me the same
way as bro did and that [batch] rocking keep it the recipe” and
Shadee responding “Ok no problem u are family.” Supp. App.
974. And the text messages alone reflect the purchase of 179
bricks of heroin over the three-month period. This is sufficient
evidence of a conspiracy. That conclusion is unaltered by the
limited references to payment, or the absence of standardized
transactions. The United States was only tasked with proving
the elements set down by Congress, not doing so in every
conceivable way. United States v. Iglesias, 

(3d Cir. 2008). Curry’s text messages further the inference that
she “was part of a larger operation and hence can be held
responsible as a coconspirator.” 

 (quoting Gibbs, 

). A reasonable juror could conclude that Curry, Al-
Tariq, and Shadee “shared a common goal” to distribute large
quantities of heroin and fentanyl with “the intent to achieve that
goal, and a tacit agreement to cooperate to achieve it.” 

Section 846 requires no more.

                               IV.

       Nor did the District Court abuse its discretion in
admitting evidence of Curry’s prior conviction for heroin
distribution under Federal Rule of Evidence 404(b). We
consider whether the contested evidence has “a nonpropensity
purpose and satisf[ies] the same relevancy requirements as any
other evidence.” United States v. Davis, 

 (3d
Cir. 2013). “There is no question that, given a proper purpose
and reasoning, drug convictions are admissible in a trial where
the defendant is charged with a drug offense.” United States v.
Sampson, 

 (3d Cir. 1992). Such is the case
here. Curry’s close-in-time heroin distribution is relevant to her




                               13
knowledge and the absence of mistaken involvement with
large quantities of heroin. See Davis, 

. The
District Court correctly balanced the probative value of this
evidence with its prejudicial impact. And any potential
prejudice was minimized by a limiting instruction that the
District Court issued after the evidence’s admission and at the
close of trial, because “we presume that the jury followed the
limiting instruction . . . and considered evidence . . . only for
the limited purposes offered.” United States v. Cruz, 

 (3d Cir. 2003). So the District Court did not abuse its
discretion.

                               V.

        Curry’s challenge to the application of the career-
offender enhancement also lacks merit. A defendant qualifies
as a career offender if she “has at least two prior felony
convictions of . . . a controlled substance offense.” 14
§ 4B1.1(a). In 2007 and 2010, Curry was convicted of
distributing heroin in New Jersey. She claims “the New Jersey
statutes for the offenses were broader than the federal
definition of a controlled substances offense.” Opening Br. 34.
But “the meaning of ‘controlled substance’ . . . is a drug
regulated by either state or federal law.” United States v. Lewis,

, 770–71 (3d Cir. 2023). So “[i]t is therefore
irrelevant that the New Jersey statute under which [Curry] was
convicted defined [heroin] more broadly than federal law.” 

       14
          Curry does not contest that the other elements of the
enhancement apply to her, namely that she was at least
eighteen years old at the time of the instant offense, and the
instant offense is “a controlled substance offense.” § 4B1.1(a).




                               14
at 771. Curry’s challenge to the application of the career-
offender enhancement therefore fails.

                          * * *

      For these reasons, we will affirm the District Court’s
judgment.




                            15
Restrepo, Circuit Judge

       Because I disagree with my colleagues that evidence obtained in violation of a

suspect’s Fifth Amendment right to counsel should be deemed admissible, I respectfully

dissent. The majority’s opinion decides an issue previously unresolved in this Circuit. 1

While “the fruit of the poisonous tree” doctrine does not generally apply to evidence

derived from a suspect’s voluntary statements elicited without Miranda warnings, the

majority’s decision extends that principle to evidence derived from statements elicited after

a suspect unequivocally invokes her Fifth Amendment right to counsel. But such an

extension is contrary to the law. While failing to issue Miranda warnings may not result

in harm to a suspect’s rights, violating a suspect’s invoked right to counsel inflicts the very

harm the warnings seek to prevent. Here, the detectives continued to interrogate Curry and

elicited the passcode to her cell phone without allowing her contact with an attorney.

Edwards v. Arizona, 

 (1981). The “fruit” of this illegally obtained

testimonial statement was the evidence of drug-dealing found on her phone. As the

Edwards court recognized, and as Wong Sun dictates, that evidence resulting from police

exploiting their illegal conduct must be suppressed. Edwards, 

; Wong Sun

v. United States, 

 (1963). For this reason, I dissent from Part II of the

majority’s opinion.




       1
        See United States v. Caesar, 

, 168 n.4 (3d Cir. 2021) (noting that this
Court has “not opined whether the same principle applies to physical evidence derived
from a suspect’s statements elicited in violation of Edwards”).

                                              1
       The video of Curry’s custodial interrogation shows one of the two Atlantic City

Detectives issued the Miranda warnings and that Curry immediately stated she wanted her

attorney present. The detectives asked again, and Curry reiterated her request for a lawyer.

Immediately thereafter, without acknowledging the invocation of her right, a detective

asked if she wanted to give consent to search her phone. Curry said no. Interview Video

6:52:12. 2 One of the detectives told Curry that they would “type up a search warrant for

her phone” and then “hook [the phone] up to our computers and go through it that way.”

Curry asked again to confirm that they wanted to search her phone, to which a detective

answered that they would “do it anyway” and that “sometimes [the police machines] wipe

the data clean.” 6:52:50. After she confirmed that her photos and “stuff like that” would

be deleted, Curry agreed to the search. When she stated that she did not want to give her

passcode, one detective informed her that it was “after hours so the guys that [search the

phones]” were not present and they therefore needed the passcode “to open it up.” 6:53:40.

Curry wrote down her passcode and then partially verbalized it when the detectives asked

her to clarify her writing. 6:54:50. The detectives then left the interrogation room with the

phone. There was no break in the questioning and Curry never spoke to her attorney during

the interrogation.

       Inherent in the majority’s opinion is that Curry was subject to custodial interrogation

when she provided her passcode and that the passcode itself constituted a testimonial

statement entitled to Fifth Amendment protection. I agree with both conclusions. By



       2
           The video of Curry’s interview is on file with the Clerk’s Office.

                                                2
suggesting that they would otherwise delete the contents of the phone, the detectives asked

for the passcode in a manner they knew was “reasonably likely to elicit an incriminating

response from the suspect.” Rhode Island v. Innis, 

 (1980). Passcodes

constitute testimony because they reveal the subjective knowledge and thought processes

of a suspect. By giving up her passcode, Curry explicitly “relate[d] a factual assertion or

disclose[d] information” to the detectives. Doe v. United States, 

 (1988).

        I also agree with the majority’s conclusion that the bright-line rule enunciated in

the Supreme Court’s Edwards opinion was violated. Edwards commands that when a

suspect unambiguously invokes her right to counsel, all police-led interrogations must

cease. 451 U.S. at 484–85. Once the right is invoked, any “incriminating statements made

without [the suspect’s] attorney present violate[s] the rights secured to [her] by the Fifth

and Fourteenth Amendments to the United States Constitution.” Oregon v. Bradshaw, 

 (1983). See also Shea v. Louisiana, 

 (1985) (“[T]his Court

[in Edwards] ruled that a criminal defendant's rights under the Fifth and Fourteenth

Amendments were violated by the use of his confession obtained by police-instigated

interrogation—without counsel present—after he requested an attorney”).          Here, the

detectives immediately continued their interrogation after Curry unequivocally requested

counsel—without counsel present.       When she hesitated to share her passcode, the

detectives persevered until she capitulated.

       Much is made of the prophylactic nature of Miranda and its progeny in order to

distinguish procedural Miranda violations from actual Fifth Amendment violations, where



                                               3
police extract statements from suspects through coercion. I agree that evidence derived

from statements following procedural Miranda violations, such as those arising from the

“simple failure to administer the warnings, unaccompanied by any actual coercion or other

circumstances calculated to undermine the suspect’s ability to exercise his free will,” need

not be suppressed. Oregon v. Elstad, 

 (1985). As the majority notes, the

Supreme Court has described Edwards’s mandate of informing a suspect of her right to

counsel as “a second layer of prophylaxis.” Majority Op., 9; McNeil v. Wisconsin, 

 (1991). While the first layer of safeguards provides warnings to protect a suspect

from self-incrimination, the “second layer” provides a suspect with the right to counsel to

prevent such self-incrimination from taking place. The majority’s position, therefore,

seems to be that an officer disregarding a suspect’s invocation of counsel merely violates

a procedural safeguard without undermining her ability to exercise her free will or violating

a constitutionally secured right.

       But that is neither a fair nor accurate assessment, and not one the Supreme Court

has endorsed. While warning a suspect of the right to counsel is prophylactic, her

invocation of that right is entitled to protection under the Fifth Amendment. If a suspect’s

testimonial statement is improperly elicited without warnings, “Miranda’s preventive

medicine provides a remedy even to the defendant who has suffered no identifiable

constitutional harm.” Elstad, 

. In other words, Miranda mandates the

suppression of the statement even if no Fifth Amendment violation has taken place. This

is not that situation. Here, Curry’s Fifth Amendment right to counsel attached when she



                                             4
unequivocally requested to have her attorney present. That right was then violated when

her interrogation continued without counsel, and she suffered identifiable constitutional

harm because her consequent statement was presumed to be the result of coercion.

See Smith v. Illinois, 

, 98–99, 99 n.8 (1984) (holding that statements made after

an unambiguous request for counsel are presumed to be the product of coercion and

therefore cannot cast doubt on the suspect’s invocation of the right).

       The Supreme Court, recognizing the difference between procedural safeguards and

a suspect’s Fifth Amendment rights, described failure to warn cases as “inapposite” to cases

like Curry’s, where the right “to have counsel present [was] flatly ignored while police

subjected them to continued interrogation.” Elstad, 

 n.3. Edwards imposed

a “‘rigid rule’” that interrogations must cease because “‘an accused’s request for an

attorney is per se an invocation of his Fifth Amendment rights.’” 

 (quoting

Fare v. Michael C., 

 (1979)). That invocation triggered her “‘undisputed

right’” to not be interrogated until the suspect “‘had consulted with a lawyer.’” 

 (quoting

Innis, 

); see also McNeil v. Wisconsin, 

 (1991)

(describing the Miranda-Edwards Fifth Amendment right to have counsel present during

custodial interrogation); Flamer v. Delaware, 

 (3d Cir. 1995) (recognizing

the Fifth Amendment right to counsel during custodial interrogation is not offense-

specific). Rather than merely fail to follow procedure, therefore, the detectives ignored

Curry’s per se invocation of her Fifth Amendment right to have counsel present.




                                              5
       Tellingly, Edwards does not distinguish between a violation of a suspect’s right to

counsel and a Fifth Amendment violation, indicating that the Court viewed them as one

and the same. The Edwards rule protects the Fifth Amendment rights of those “‘not capable

of undergoing [custodial] questioning without the advice of counsel.’” Maryland v.

Shatzer, 

 (2010) (quoting Arizona v. Roberson, 

 (1988))

(alteration in original). Here, Curry suffered the precise constitutional harm the Fifth

Amendment right to counsel seeks to prevent—giving an incriminating response while

subject to a custodial interrogation. Had the law been followed and Curry’s counsel had

been present for her interrogation, she would have been advised not to share the passcode

with the detectives. Contrary to my colleagues’ conclusion, the detectives did not need to

employ physical coercion to violate her Fifth Amendment right to counsel. Instead, Curry’s

right to counsel had already attached, and the passcode was elicited in circumstances where

it is presumed that her statement was coerced and not “‘the product of [her] free choice.’”

Shatzer, 

 (quoting Miranda v. Arizona, 

 (1966)). See also

United States v. Pantane, 

 (2004) (explaining that unwarned custodial

interrogations carry a “presumption of coercion”).

       The detectives’ violation of Curry’s Fifth Amendment right to counsel should have

resulted in suppression of the evidence derived from her passcode. In determining whether

the “fruit” doctrine applies to the contents of Curry’s phone, the pertinent inquiry is

“whether, granting the establishment of the primary illegality, the evidence . . . has been

come at by exploitation of that illegality or instead by means sufficiently distinguishable



                                            6
to be purged of the primary taint.” Wong Sun, 

; see also Nix v. Williams,

 (1984) (holding the exclusionary rule requires suppression of

evidence tainted by a violation of the Fifth Amendment). The primary illegality was the

detectives flatly ignoring Curry’s invocation of her right to counsel and continuing their

interrogation. That illegality was exploited to get Curry to provide her passcode. Given

that nothing purged the primary taint of illegality of the interrogation following her

invocation of the right to counsel, the “fruit” doctrine requires the suppression of evidence

derived from the detectives exploiting the absence of her attorney. This is what the

Edwards court intended when it concluded that the “fruits of the interrogation” that

followed Edwards’s invoking his right to counsel “could not be used against [him],”

signifying that Wong Sun applies to violations of a suspect’s Fifth Amendment right to

counsel. Edwards, 

.

       The majority asserts that suppressing the contents of Curry’s phone would be a “bold

and controversial claim of authority” because such an action would not deter police

misconduct. Maj. Op. at 10 (citing Vega v. Tekoh, 

, 149 (2020)). According

to my colleagues, if we were to suppress the “fruits” resulting from intentional violations

of a suspect’s Fifth Amendment right to counsel, then police would solicit testimony, such

as passcodes, before issuing Miranda warnings.           Under the majority’s reasoning,

suppressing the contents of Curry’s phone would cause police officers to intentionally

violate Miranda procedures and illegally elicit testimony from suspects to gain access to

evidence. Putting aside this discouraging assumption, the majority is choosing to condone



                                             7
violating a suspect’s right to counsel in order to deter police from deliberately omitting

Miranda warnings. I posit that encouraging the infliction of actual constitutional harm is

not the proper way to protect procedural safeguards. Instead, this Court should protect a

suspect’s right to counsel, as secured and protected by the Constitution.

       Suppressing evidence that arises from exploited illegal conduct is hardly “bold and

controversial.” Majority Op. at 10 (citing Vega, 597 U.S. at 149). Indeed, it is far bolder

to disregard the constitutional right and bright-line rule established in Edwards, and to

eviscerate the holding of Wong Sun. It is especially bold in this instance, given that the

testimonial statement of a numerical passcode is unlikely to be incriminating whereas the

contents of a suspect’s phone will almost certainly contain evidence of wrongdoing, if such

evidence exists. The Supreme Court has recognized that cell phones “typically expose . .

. far more than the most exhaustive search of a house” because they contain no less than

“[t]he sum of an individual’s private life.” Riley v. California, 

, 394–95 (2014)

(emphasis in original). Failing to protect evidence illegally obtained in violation of a

suspect’s constitutional rights, where the suppression of the testimonial statement acts as a

meaningless deterrent, only invites more of the flagrant misconduct seen here. I am

therefore compelled to dissent.




                                             8