The closest the Ninth Circuit has come was to issue a warning several years back in an unpublished decision: “The government's use at trial of [defendant's] cell site location information raises important and troublesome privacy questions not yet addressed by this court.” United States v. Reyes, 435 Fed.Appx. 596, 598 (9th Cir.2011). In the absence of any binding authority, the Court ventures into this “troublesome” area of Fourth Amendment law as a matter of first impression.
Id. at 511. Additionally, in United States v. Reyes, 435 F. App'x 596 (9th Cir. 2011), the court declined to address the defendant's argument that the government's collection of his cell site data violated the Fourth Amendment because he failed to raise the issue before the trial court. Nonetheless, the court noted that "[t]he government's use at trial of Reyes's cell site location information raises important and troublesome privacy questions not yet addressed by this court."
In its memorandum opinion, the Ninth Circuit stated, "[t]he 170 pounds of marijuana hidden in the vehicle Reyes drove across the border was 'independent, overwhelming physical evidence' of his guilt." United States v. Reyes, No. 10-50173 (9th Cir., May 25, 2011) (quoting United States v. Whitehead, 200 F.3d 634, 639 (9th Cir. 2000) (affirming conviction on plain error review because the evidence of 55 pounds of marijuana concealed in defendant's car was 'virtually conclusive of guilt.'). Thus, even if counsel's assistance was ineffective for failing to seek suppression of the CSLI evidence, Petitioner cannot adequately demonstrate sufficient prejudice resulted.
In its memorandum opinion, the Ninth Circuit stated, "[t]he 170 pounds of marijuana hidden in the vehicle Reyes drove across the border was independent, overwhelming physical evidence' of his guilt." United States v. Reyes, No. 10-50173 (9th Cir., May 25, 2011) (quoting United States v. Whitehead, 200 F.3d 634, 639 (9th Cir. 2000) (affirming conviction on plain error review because the evidence of 55 pounds of marijuana concealed in defendant's car was virtually conclusive of guilt.'). Thus, even if counsel's assistance was ineffective for failing to seek suppression of the CSLI evidence, Petitioner cannot adequately demonstrate sufficient prejudice resulted.