In 2005 the San Francisco 49ers, in compliance with a NFL policy initiated a policy of pat searching patrons as they entered the stadium for football games. Daniel and Kathleen Sheehan challenged the policy in court as a violation of the California Constitutional privacy right.

The 49ers demurred to the complaint and the San Francisco Superior Court dismissed the case. The Court of Appeals confirmed the dismissal but the Supreme Court ruled Monday that the Superior Court had insufficient information to dismiss the case and it reinstated the suit for further proceedings.

In order to succeed in a suit charging a violation of the constitutional privacy right the Sheehans must show that

(1) a legally protected privacy interest, (2) a reasonable expectation of privacy under the circumstances, and (3) a serious invasion of the privacy interest.”

But because the Superior Court decided the matter on a demur it did not have enough information to determine that it is impossible for the Sheehans to prove a privacy invasion. In particular the Supreme Court held that the trial court did not have enough information to decide whether the Sheehans had a reasonable expectation of privacy Among the issues that will have to be decided at trial are whether the Sheehans waived their right by going to the game, whether the 49ers had a reasonable purpose for imposing the pat search requirement, and whether the 49ers could have used a less intrusive method to obtain their goal.

The Eleventh Circuit Court of appeals recently upheld a similar but different search at Tampa Bay Buccaneers games. The Tampa policy, unlike San Francisco’s limited the search to above the waist and more importantly Florida does not have a constitutional right to privacy.