The California Court of Appeal, in a 2-1 decision, said that Daniel and Kathleen Sheehan waived their privacy concerns because they knew of the pat-down searches before they bought their tickets for the 2006-2007 season. They sued in December 2005 after experiencing pat-down searches that season.
The court said the couple could quit going to games if they were offended by the searches.
"By voluntarily re-upping for the next season under these circumstances, rather than opting to avoid the intrusion by not attending the games at Monster Park, the Sheehans impliedly consented to the pat-downs," Justice Timothy Reardon wrote for the majority, adding that the "Sheehans have no reasonable expectation of privacy."
Justice Maria Rivera dissented, arguing that her colleagues too easily tossed aside the Sheehans' privacy concerns.
"The courts' role in protecting privacy rights should not be so readily abdicated," Rivera wrote, noting that the Sheehans have no other way to watch the team in person. "If you are the only game in town, requiring your customers to either submit to a pat-down search or walk away does not present the kind of genuine choice upon which the majority's reasoning is premised."
ACLU lawyers, who helped the Sheehans with their lawsuit, and a 49ers spokeswoman did not immediately return calls for comment.
A federal appeals court in Florida and a federal district court judge in Seattle each ruled similarly in upholding pat-down searches at Tampa Bay Buccaneers and Seattle Seahawks home games.
