Supreme Court of California Justia
Citation 45 Cal. 4th 992, 201 P.3d 472, 89 Cal. Rptr. 3d 594

Sheehan v. San Francisco 49ers

Filed 3/2/09

IN THE SUPREME COURT OF CALIFORNIA

DANIEL SHEEHAN et al.,
Plaintiffs
and
Appellants,
S155742
v.
Ct.App.
1/4
A114945
THE SAN FRANCISCO 49ERS, LTD.,
San Francisco City and County
Defendant and Respondent.
Super. Ct. No. CGC05447679

In 2005, the San Francisco 49ers, Ltd. (49ers’) began implementing a
policy of the National Football League (NFL) requiring all patrons at their football
games to submit to a patdown search before entering the stadium. Plaintiffs claim
the policy violates their state constitutional right to privacy. (Cal. Const., art. I,
§ 1.) The case has come to us after the superior court sustained a demurrer and
dismissed the action. On appeal after the superior court has sustained a demurrer,
we assume as true all facts alleged in the complaint. (Evans v. City of Berkeley
(2006) 38 Cal.4th 1, 6.) In this case, assuming the alleged facts to be true, we hold
the record does not contain enough information to establish as a matter of law that
the complaint fails to state a cause of action. Accordingly, this action is not
susceptible to disposition on demurrer. We reverse the Court of Appeal’s
judgment and remand the matter for further proceedings consistent with this
opinion.
1


I. Procedural History
In December 2005, plaintiffs Daniel and Kathleen Sheehan filed a
complaint for injunctive and declaratory relief against the 49ers’. It alleged the
following:
Plaintiffs are longtime 49ers’ season ticket holders. Beginning in the fall of
2005, the 49ers’ instituted a patdown inspection of all ticket holders attending the
49ers’ home games. Plaintiffs and all other ticket holders “were subjected to a
pat-down search by ‘Event Staff’ screeners before they were allowed to enter the
stadium. On each such occasion, after being herded through barricades,
[plaintiffs] were forced to stand rigid, with arms spread wide. The 49ers’
screeners then ran their hands around the [plaintiffs’] backs and down the sides of
their bodies and their legs. Members of the San Francisco Police Department
stood a few feet away from the screeners and observed the pat-down searches
taking place.” The 49ers’ implemented the patdown policy pursuant to a policy
the NFL promulgated in August 2005, by which “stadium screeners are supposed
to conduct physical searches by ‘touching, patting, or lightly rubbing’ all ticket
holders entering every NFL stadium for each NFL game [that] year.” Plaintiffs
“object to being forced to undergo these suspicionless searches as a condition of
retaining their season tickets.”
The complaint alleged that the patdown searches violated plaintiffs’ state
constitutional right to privacy. (Cal. Const., art. I, § 1.) It sought a declaration
that the searches were unconstitutional and an injunction prohibiting any further
such searches.
The 49ers’ demurred to the complaint, arguing that it did not state a cause
of action. At the hearing, the trial court questioned whether the relief sought was
ripe because the 49ers’ 2005 season was over. Plaintiffs stated they had bought
the 49ers’ 2006 season tickets and subsequently, in March 2006, amended their
2
complaint to include this fact. The amended complaint also alleged that plaintiffs
believed the 49ers’ intended to continue conducting patdown searches of all
persons entering or reentering the stadium during the next season. Both parties
stipulated that the demurrer would apply to the amended complaint. Ultimately,
the trial court sustained the demurrer without leave to amend and dismissed the
action with prejudice. Plaintiffs appealed.
The Court of Appeal affirmed. It “conclude[d] that the Sheehans cannot
demonstrate that they had a reasonable expectation of privacy under the
circumstances . . . .” It explained that “rather than submit to the pat-down the
Sheehans had the choice of walking away, no questions asked.” Justice Rivera
dissented. She “disagree[d] that the purchase of future tickets with knowledge of
the search policy — or acquiescence in a pat-down search to gain entry to the
49ers’ games — supports a conclusion as a matter of law that the Sheehans have
relinquished their reasonable expectation to be free from unjustified, intrusive
searches.” She would have reversed the judgment and remanded the matter for
further factual development.
We granted plaintiffs’ petition for review, which raised the question
whether the Court of Appeal properly found they validly consented to the search
policy.
II. DISCUSSION
California Constitution, article I, section 1, provides, “All people are by
nature free and independent and have inalienable rights. Among these are
enjoying and defending life and liberty, acquiring, possessing, and protecting
property, and pursuing and obtaining safety, happiness, and privacy.” (Italics
added.) The phrase “and privacy” was added to the Constitution by a voter
initiative adopted in 1972. (Hill v. National Collegiate Athletic Assn. (1994) 7
Cal.4th 1, 15 (Hill) [the “Privacy Initiative”].)
3
In this case, plaintiffs allege that the 49ers’ patdown policy violates their
state constitutional right to privacy. The case comes before us after the superior
court dismissed the case on demurrer. This means that the 49ers’ have not yet
even filed an answer, given any explanation or justification for the alleged search
policy, or asserted any defenses. The only record we have, and all we have to go
by in deciding this case, is the complaint. In this procedural posture, we must
assume that all of the facts alleged in the complaint are true. (Evans v. City of
Berkeley, supra, 38 Cal.4th at p. 6.) Moreover, we may affirm the sustaining of a
demurrer only if the complaint fails to state a cause of action under any possible
legal theory. (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 810.)
The Court of Appeal held that plaintiffs validly consented to the search policy. It
may ultimately be right, but the meager record before us does not establish valid
consent as a matter of law. In particular, the 49ers’ have not demonstrated that the
allegations of the complaint fail to state a cause of action under any possible legal
theory. Further factual development is necessary.
In Hill, supra, 7 Cal.4th 1, a case involving a challenge to the student-
athlete drug testing policies of the National Collegiate Athletic Association
(NCAA), we considered the showing a person must make to state a violation of
California’s constitutional right to privacy. That decision made clear that “the
right of privacy protects the individual’s reasonable expectation of privacy against
a serious invasion.” (Pioneer Electronics (USA), Inc. v. Superior Court (2007) 40
Cal.4th 360, 370, citing Hill, supra, at pp. 36-37.) As we recently summarized
Hill’s holding, “The party claiming a violation of the constitutional right of
privacy established in article I, section 1 of the California Constitution must
establish (1) a legally protected privacy interest, (2) a reasonable expectation of
privacy under the circumstances, and (3) a serious invasion of the privacy
interest.” (International Federation of Professional and Technical Engineers,
4
Local 21, AFL-CIO v. Superior Court (2007) 42 Cal.4th 319, 338, citing Hill,
supra, at pp. 39-40.) “A defendant may prevail in a state constitutional privacy
case by negating any of the three elements just discussed or by pleading and
proving, as an affirmative defense, that the invasion of privacy is justified because
it substantively furthers one or more countervailing interests.” (Hill, supra, at p.
40.)
Hill further explained that, “[c]onfronted with a defense based on
countervailing interests, the plaintiff may undertake the burden of demonstrating
the availability and use of protective measures, safeguards, and alternatives to the
defendant’s conduct that would minimize the intrusion on privacy interests.”
(Hill, supra, 7 Cal.4th at p. 38.) Moreover, “[t]he particular context, i.e., the
specific kind of privacy interest involved and the nature and seriousness of the
invasion and any countervailing interests, remains the critical factor in the
analysis.” (Id. at p. 34.)
Subsequent opinions have explained that “the three ‘elements’ set forth in
Hill properly must be viewed simply as ‘threshold elements’ that may be utilized
to screen out claims that do not involve a significant intrusion on a privacy interest
protected by the state constitutional privacy provision. These elements do not
eliminate the necessity for weighing and balancing the justification for the conduct
in question against the intrusion on privacy resulting from the conduct in any case
that raises a genuine, nontrivial invasion of a protected privacy interest. . . . Hill
was the first case in which our court addressed the question whether the state
constitutional privacy clause applies to private as well as to governmental entities.
Having concluded that the privacy clause applies to private entities and also that
the legal concept of ‘privacy’ potentially has a very broad sweep, the court in Hill
determined that it was appropriate to articulate several threshold elements that
may permit courts to weed out claims that involve so insignificant or de minimis
5
an intrusion on a constitutionally protected privacy interest as not even to require
an explanation or justification by the defendant. Hill cannot properly be read,
however, to have adopted a sweeping new rule under which a challenge to conduct
that significantly affects a privacy interest protected by the state Constitution may
be rejected without any consideration of either the legitimacy or strength of the
defendant’s justification for the conduct.” (Loder v. City of Glendale (1997) 14
Cal.4th 846, 893-894, fn. omitted (lead opn. of George, C. J.), quoted in American
Academy of Pediatrics v. Lungren (1997) 16 Cal.4th 307, 331 (plur. opn. of
George, C. J.).)
Hill provides the “analytical framework” for assessing plaintiffs’ claim.
(Pioneer Electronics (USA), Inc. v. Superior Court, supra, 40 Cal.4th at p. 370.)
We have applied the Hill analysis in various factual contexts since it was decided,
but this is the first time we have done so regarding security measures adopted at a
private entertainment venue.
The first element plaintiffs must establish is a legally protected privacy
interest. Hill explained that such “interests are generally of two classes: (1)
interests in precluding the dissemination or misuse of sensitive and confidential
information (‘informational privacy’); and (2) interests in making intimate
personal decisions or conducting personal activities without observation, intrusion,
or interference (‘autonomy privacy’).” (Hill, supra, 7 Cal.4th at p. 35.) We
described the first of these classes, informational privacy, as the “principal focus”
or “core value” of the constitutional privacy right. (Id. at pp. 21, 35.) That
interest is not implicated here. Plaintiffs allege the 49ers’ were conducting
patdown searches, not collecting personal information. The second class of
privacy interests, autonomy privacy, is implicated. People certainly have, in
general, a right not to have others pat them down. At this stage, plaintiffs have
sufficiently alleged this element. Similarly, because the issue is not within the
6
scope of review, we may assume for present purposes that plaintiffs have
sufficiently alleged the third element, a serious invasion of the privacy interest.
The issue here involves the second element, the one the courts below found
lacking. Plaintiffs must establish a reasonable expectation of privacy under the
circumstances. “A ‘reasonable’ expectation of privacy is an objective entitlement
founded on broadly based and widely accepted community norms.” (Hill, supra, 7
Cal.4th at p. 37.) “[C]ustoms, practices, and physical settings surrounding
particular activities may create or inhibit reasonable expectations of privacy.” (Id.
at p. 36.) “A plaintiff’s expectation of privacy in a specific context must be
objectively reasonable under the circumstances, especially in light of the
competing social interests involved.” (Id. at pp. 26-27.)
The factual record of this case — which consists solely of the complaint —
does not establish what the competing social interests are. Presumably, the NFL,
and ultimately the 49ers’, adopted the policy to enhance spectator safety, but the
record does not establish this or explain why the NFL believed the policy was
appropriate. As evidenced by the circumstance that the pursuit of safety, like the
pursuit of privacy, is a state constitutional right, the competing social interest of
enhancing safety is substantial. Those who provide private entertainment venues,
including the 49ers’ at NFL football games, have a substantial interest in
protecting the safety of their patrons. But when the security measures
substantially threaten a privacy right, courts review the policy for reasonableness
under the circumstances. Here, we cannot do so because the record does not
establish the circumstances of, or the reasons for, the patdown policy. The 49ers’
have not yet given any justification for its policy.
We have explained that, in order to establish a reasonable expectation of
privacy, the plaintiff “must have conducted himself or herself in a manner
consistent with an actual expectation of privacy, i.e., he or she must not have
7
manifested by his or her conduct a voluntary consent to the invasive actions of
defendant. If voluntary consent is present, a defendant’s conduct will rarely be
deemed ‘highly offensive to a reasonable person’ so as to justify tort liability.”
(Hill, supra, 7 Cal.4th at p. 26.) But the validity of the consent theory depends on
the totality of the circumstances, which this record does not establish. For
example, in McMorris v. Alioto (9th Cir. 1978) 567 F.2d 897, where the court
upheld the use of courthouse magnetometers on a consent theory, the issue arose
on summary judgment after factual development, not on demurrer with no factual
development.
The Eleventh Circuit Court of Appeals recently upheld on a consent theory
an NFL patdown search policy that is similar but slightly different from the one
alleged here. (Johnston v. Tampa Sports Authority (11th Cir. 2008) 530 F.3d
1320.) Johnston did not consider California’s constitutional privacy right, but it
involved the Tampa Sports Authority, a public entity. (Id. at p. 1322.) The search
at issue was performed by state agents, and thus the restrictions of the Fourth
Amendment to the United States Constitution applied. (Johnston, supra, at pp.
1325-1326.) Hill held that the California privacy right applies against private
entities, but it also stated that “[t]he ‘privacy’ protected by the Privacy Initiative is
no broader in the area of search and seizure than the ‘privacy’ protected by the
Fourth Amendment . . . .” (Hill, supra, 7 Cal.4th at p. 30, fn. 9.) However,
Johnston reached its conclusion on a full factual record, a record lacking here.
The search policy described in Johnston is also different from the one alleged
here. In Johnston, the search encompassed only “limited above-the-waist pat-
down searches” (Johnston, supra, at p. 1323); here, plaintiffs allege that the
screeners “ran their hands around the [plaintiffs’] backs and down the sides of
their bodies and their legs.”
8
Moreover, although consent is an important factor in determining whether
California’s constitutional privacy right is being infringed, Hill does not stand for
the proposition that a person who chooses to attend an entertainment event
consents to any security measures the promoters may choose to impose no matter
how intrusive or unnecessary. Hill concluded that, “[a]lthough diminished by the
athletic setting and the exercise of informed consent, plaintiffs’ privacy interests
are not thereby rendered de minimis.” (Hill, supra, 7 Cal.4th at p. 43.) We held
that the “NCAA’s use of a particularly intrusive monitored urination procedure
justifies further inquiry, even under conditions of decreased expectations of
privacy.” (Ibid.) Thus, a person can be deemed to consent only to intrusions that
are reasonable under the circumstances.
One relevant circumstance for the court to consider in determining the
search policy’s reasonableness is that the NFL and the 49ers’ are private entities.
Although we held in Hill that the state constitutional right of privacy “creates a
right of action against private as well as government entities” (Hill, supra, 7
Cal.4th at p. 20), we also explained that “[j]udicial assessment of the relative
strength and importance of privacy norms and countervailing interests may differ
in cases of private, as opposed to government, action.” (Id. at p. 38.) Two reasons
for the difference might apply here. “First, the pervasive presence of coercive
government power in basic areas of human life typically poses greater dangers to
the freedoms of the citizenry than actions by private persons.” (Ibid.) “Second,
‘an individual generally has greater choice and alternatives in dealing with private
actors than when dealing with the government.’ [Citation.] Initially, individuals
usually have a range of choice among landlords, employers, vendors and others
with whom they deal. . . . [V]arying degrees of competition in the marketplace
may broaden or narrow the range.” (Id. at pp. 38-39.)
9
We further explained that “[t]hese generalized differences between public
and private action may affect privacy rights differently in different contexts. If,
for example, a plaintiff claiming a violation of the state constitutional right to
privacy was able to choose freely among competing public or private entities in
obtaining access to some opportunity, commodity, or service, his or her privacy
interest may weigh less in the balance. In contrast, if a public or private entity
controls access to a vitally necessary item, it may have a correspondently greater
impact on the privacy rights of those with whom it deals.” (Hill, supra, 7 Cal.4th
at p. 39.)
Another factor to consider is the existence of less restrictive alternatives.
(Hill, supra, 7 Cal.4th at p. 38.) But to establish the reasonableness of their
policy, the 49ers’ do not have to show that they have adopted the least restrictive
alternative. In Hill, we explained that “the trial court erred in imposing on the
NCAA the burden of establishing that there were no less intrusive means of
accomplishing its legitimate objectives. . . . [T]he argument that such a ‘least
restrictive alternative’ burden must invariably be imposed on defendants in
privacy cases derives from decisions that: (1) involve clear invasions of central,
autonomy-based privacy rights, particularly in the areas of free expression and
association, procreation, or government-provided benefits in areas of basic human
need; or (2) are directed against the invasive conduct of government agencies
rather than private, voluntary organizations.” (Id. at p. 49.) Neither of these
situations applies here. “We have been directed to no case imposing on a private
organization, acting in a situation involving decreased expectations of privacy, the
burden of justifying its conduct as the ‘least offensive alternative’ possible under
the circumstances. Nothing in the language [or] history of the Privacy Initiative
justifies the imposition of such a burden; we decline to impose it.” (Id. at p. 50;
see also id. at pp. 49-50, fn. 16.)
10
Accordingly, in reviewing a private entertainment venue’s security
arrangements that implicate the state constitutional right of privacy, the court does
not decide whether every measure is necessary, merely whether the policy is
reasonable. The state constitutional right of privacy does not grant courts a roving
commission to second-guess security decisions at private entertainment events or
to micromanage interactions between private parties. (Cf. Michigan Dept. of State
Police v. Sitz (1990) 496 U.S. 444, 453 [certain language from an earlier case “was
not meant to transfer from politically accountable officials to the courts the
decision as to which among reasonable alternative law enforcement techniques
should be employed to deal with a serious public danger”].) Private entities that
present entertainment events, like the 49ers’, necessarily retain primary
responsibility for determining what security measures are appropriate to ensure the
safety of their patrons, subject, when those security measures substantially infringe
on a privacy interest, to judicial review for reasonableness.
In this case, given the absence of an adequate factual record, we conclude
that further inquiry is necessary to determine whether the challenged policy is
reasonable in light of the factors we have discussed. Plaintiffs are entitled to
proceed with their case.
III. CONCLUSION
We reverse the judgment of the Court of Appeal and remand the matter for
further proceedings consistent with this opinion.
CHIN,
J.
WE CONCUR:
KENNARD, J.
BAXTER, J.
CORRIGAN, J.
11




CONCURRING OPINION BY WERDEGAR, J.
I agree with my colleagues that the numerous unresolved factual issues
remaining in this case preclude resolution on demurrer and require that we reverse
judgment for the San Francisco 49ers (49ers) and remand for further proceedings.
But both because of what it says and what it does not say in arriving at that
conclusion, I cannot join the majority opinion.
I
This case comes to us on appeal from the sustaining of a demurrer without
leave to amend. We may affirm only if the complaint fails to state a cause of
action under any possible legal theory. (Fox v. Ethicon Endo-Surgery, Inc. (2005)
35 Cal.4th 797, 810.) Moreover, “[r]egardless of whether a request therefore was
made, unless the complaint shows on its face that it is incapable of amendment,
denial of leave to amend constitutes an abuse of discretion.” (Roman v. County of
Los Angeles (2000) 85 Cal.App.4th 316, 322.) Thus, the question before us is
whether or not the Sheehans can conceivably make out any privacy claim.
Because privacy claims typically involve a fact-dependent weighing, resolution of
such claims on demurrer is rare.
Having considered the rationales offered by the 49ers for deciding this case
on demurrer, I agree with the majority opinion that the lower courts erred in
finding that the Sheehans’ claim challenging their patdown policy fails as a matter
of law. The Sheehans’ claim requires proof of “(1) a legally protected privacy
1


interest; (2) a reasonable expectation of privacy in the circumstances; and
(3) conduct by defendant constituting a serious invasion of privacy.” (Hill v.
National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 39-40 (Hill).) “A defendant
may prevail in a state constitutional privacy case by negating any of the three
elements just discussed or by pleading and proving, as an affirmative defense, that
the invasion of privacy is justified because it substantively furthers one or more
countervailing interests.” (Id. at p. 40; accord, id. at pp. 60-61 (conc. & dis. opn.
of Kennard, J.).) At this stage, as the majority opinion acknowledges (maj. opn.,
ante, at pp. 7-9), the 49ers have not negated the existence of a reasonable
expectation of privacy in the circumstances, an expectation that is heavily context
dependent and can be fairly assessed only after the development of a factual
record. Nor have they pled or proved any justification for the alleged invasion of
privacy.
The barriers to resolving this case on demurrer, however, are even greater
than is apparent from the majority opinion. The Sheehans have not yet been
afforded the opportunity Hill guarantees them to rebut any asserted or assumed
justification by raising alternatives. “Confronted with a defense based on
countervailing interests, the plaintiff may undertake the burden of demonstrating
the availability and use of protective measures, safeguards, and alternatives to the
defendant’s conduct that would minimize the intrusion on privacy interests.
[Citations.] . . . [I]f defendant’s legitimate objectives can be readily accomplished
by alternative means having little or no impact on privacy interests, the prospect of
actionable invasion of privacy is enhanced.” (Hill, supra, 7 Cal.4th at p. 38; see
id. at p. 61 (conc. & dis. opn. of Kennard, J.) [arguing plaintiffs should be afforded
a fair opportunity to offer evidence of “feasible and effective alternatives having a
lesser impact on privacy”]; Save Open Space Santa Monica Mountains v. Superior
Court (2000) 84 Cal.App.4th 235, 255 [recognizing that even when privacy
2
intrusion is warranted, it “ ‘should be the minimum intrusion necessary to achieve
its objective’ ”].) The existence of less intrusive alternatives thus may well bear
critically on proving an invasion of privacy. (Hill, at pp. 38, 52.) On demurrer,
we have no evidence whether feasible, less intrusive measures exist that might
achieve the 49ers’ asserted goals — goals thus far not even pled — while reducing
any invasion of privacy. Because the majority opinion devotes only passing
reference to the fact that the existence of alternatives may be central to proof of a
privacy claim, noting instead that the 49ers do not bear an initial burden of
proving they have adopted the least intrusive alternative, its discussion of the role
of alternatives is incomplete and misleading.
While failing, therefore, to explain fully the barriers that exist to resolution
of this case on the pleadings, the majority opinion on the other hand delves into
matters that are beyond our province. The issues involved in a privacy balancing
are issues of degree: just how great is the justification, how intrusive the policy,
and how feasible (and intrusive) are any alternatives? In deciding this case on
demurrer, it is not our role to speculate, as does the majority opinion, how on
remand the ultimate weighing of these factors will play out on a fully developed
record. Thus, we need not say whether the 49ers’ security interest, an interest
asserted in argument but not part of the pleadings, is “substantial” or a “substantial
interest.” (Maj. opn., ante, at p. 7.)1 Nor need we opine whether the Court of

1
Bolstering this assertion with an allusion to the state Constitution’s safety
provision (maj. opn., ante, at p. 7; see Cal. Const., art. I, § 1 [inalienable rights
include the right to “pursu[e] and obtain[] safety”]) is, it seems to me, particularly
unnecessary. Insofar as I am aware, we have never given an interpretive gloss to
this portion of the state Constitution. I find it unusual that we would invoke this
clause in this context, without any discussion of its provenance or of legislative or
voter intent. I find it more unusual that we would invoke the right, in effect, on
behalf of third parties (other attendees) not even involved in this suit, as the
Sheehans are not raising their own right to pursue safety here. I find it most
unusual that we would invoke the right as a justification for conduct by an entity
3


Appeal “may ultimately be right.” (Maj. opn., ante, at p. 4.) Nor need we
ruminate how the 49ers’ status as a private entity might or might not play into the
weighing calculus on remand. (Id. at pp. 9-10.)
I take issue as well with the majority opinion’s dicta concerning the
respective roles of the courts and private entities in evaluating measures alleged to
infringe on privacy. (Maj. opn., ante, at p. 11.) The majority opinion’s discussion
suggests a level of extreme deference to the judgment of private interests,
implying that any careful scrutiny of privately adopted policies would amount to
impermissible micromanagement of private interactions. However, the 1972
Privacy Initiative points us in the opposite direction; it reflects a recognition that
market forces alone may not be sufficient to ensure for Californians the ability to
retain some semblance of privacy in the course of dealings with government,
employers, businesses, and the like. (See Ballot Pamp., Gen. Elec. (Nov. 7, 1972)
argument in favor of Prop. 11, p. 26 [“At present there are no effective restraints
on the information activities of government and business” (italics added)]; Hill,
supra, 7 Cal.4th at pp. 17-18.) The Legislature passed the Privacy Initiative, the
people approved it, and we must enforce it. In doing so, I am unwilling to
substitute for the constitutional right the people endorsed a reflexive faith in the
governmental and private actors they deemed wanting. Courts are obligated to
ensure private entities do, in fact, act responsibly and reasonably. Where such
entities do so, much litigation will be avoided, and if claims nevertheless are filed,
they will be denied. But in the instances where private entities do not act
reasonably, the Privacy Initiative tasks us and the lower courts with enforcing a

that is not the holder of the right, and do so sua sponte, when even the entity itself
has not done so; the 49ers nowhere mention the constitutional right to pursue
safety in their brief.
4


rule of reason by balancing privacy interests and competing justifications,
unblinded by any deference to one side or another.
II
While the majority opinion speaks to matters we have no occasion to
address, it is silent with respect to matters we are obligated to decide. Notably, the
majority opinion simply assumes the Sheehans have sufficiently alleged a serious
invasion of a privacy interest. But as the 49ers expressly contest this point, and as
their contention, if valid, would lead to affirmance of the judgment, I do not think
we are at liberty to simply assume the issue away, but instead should address it on
the merits.2
On those merits, I think it clear the Sheehans have alleged an invasion of
privacy of sufficient magnitude to survive demurrer and require the 49ers to
answer. Significantly, the “serious invasion” prong (Hill, supra, 7 Cal.4th at
p. 40) is intended only to allow courts to “ ‘weed out claims that involve so
insignificant or de minimis an intrusion on a constitutionally protected privacy
interest as not even to require an explanation or justification by the defendant.’ ”
(American Academy of Pediatrics v. Lungren (1997) 16 Cal.4th 307, 331 (plur.
opn. of George, C. J.), quoting Loder v. City of Glendale (1997) 14 Cal.4th 846,
893 (lead opn. of George, C. J.); see American Academy of Pediatrics, at pp. 375-
376 (conc. opn. of Kennard, J.) [endorsing same view]; In re Carmen M. (2006)
141 Cal.App.4th 478, 492, fn. 13; Coalition Advocating Legal Housing Options v.
City of Santa Monica (2001) 88 Cal.App.4th 451, 460.)

2
Contrary to the majority (maj. opn., ante, at pp. 6-7), the question falls
squarely within the issues as framed by the parties, and we have not limited the
issues. To quote the petitioners, “The issue presented by this case is
straightforward: whether Article I, section 1 [of the California Constitution]
unqualifiedly permits the San Francisco 49ers to condition entrance to Monster
Park on submitting to an intrusive pat-down search.”
5


This is not such a claim. While some courts have concluded suspicionless,
dragnet patdown searches on entering an arena are constitutional under the Fourth
Amendment to the United States Constitution (e.g., Johnston v. Tampa Sports
Authority (11th Cir. 2008) 530 F.3d 1320), other courts have concluded otherwise
(e.g., State v. Seglen (N.D. 2005) 700 N.W.2d 702, 709; Jacobsen v. City of
Seattle (Wash. 1983) 658 P.2d 653, 674; Gaioni v. Folmar (M.D.Ala. 1978) 460
F.Supp. 10, 15; Stroeber v. Commission Veteran’s Auditorium (S.D. Iowa 1977)
453 F.Supp. 926, 933; Wheaton v. Hagan (M.D.N.C. 1977) 435 F.Supp. 1134,
1147; Collier v. Miller (S.D.Tex. 1976) 414 F.Supp. 1357, 1365). From these
cases and from the general frequency with which patdown policies are challenged
and litigated to differing results, I think it apparent that the intrusion at issue, far
from being trivial or insignificant, involves a substantial invasion of citizens’
interests and expectations of physical autonomy. (See Terry v. Ohio (1968) 392
U.S. 1, 17 [public frisk conducted by police “is a serious intrusion upon the
sanctity of the person, which may inflict great indignity and arouse strong
resentment”]; United States v. Albarado (2d Cir. 1974) 495 F.2d 799, 807
[“Normally a frisk is considered a gross invasion of one’s privacy”].)
Accordingly, I would affirmatively conclude the Sheehans have stated a prima
facie case.
With these reservations, I concur in the decision to return this case to the
trial court for resolution on a fully developed record.
WERDEGAR, J.

WE CONCUR:

GEORGE, C. J.
MORENO, J.

6
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Sheehan v. San Francisco 49ers, Ltd.
__________________________________________________________________________________

Unpublished Opinion


Original Appeal
Original Proceeding
Review Granted
XXX 153 Cal.App.4th 396
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S155742
Date Filed: March 2, 2009
__________________________________________________________________________________

Court:

Superior
County: San Francisco
Judge: James L. Warren
__________________________________________________________________________________

Attorneys for Appellant:

Chapman, Popik & White, Mark A. White, Benjamin J. Riley; American Civil Liberties Union Foundation
of Northern California, Ann Brick and Margaret C. Cosby for Plaintiffs and Appellants.

Brad Seligman and Alvaro D. Soria for Impact Fund, Legal Aid Society-Employment Law Center and
Public Advocates, Inc., as Amici Curiae on behalf of Plaintiffs and Appellants.

Altshuler Berzon, Michael Rubin and Peder J. Thoreen for Unite Here as Amicus Curiae on behalf of
Plaintiffs and Appellants.

Eric Grant; John W. Whitehead and Douglas R. McKusick for The Rutherford Institute as Amicus Curiae
on behalf of Plaintiffs and Appellants.
__________________________________________________________________________________

Attorneys for Respondent:

Covington & Burling, Sonya D. Winner, Jonathan A. Patchen, Deepa Varadarajan and William V.
Goldfarb for Defendant and Respondent.

Reed Smith, Paul D. Fogel, Dennis Peter Maio; Richard A. Muisteri; Ted Fikre; and Turner D. Madden for
Live Nation, Anschutz Entertainment Group, Inc., and International Association of Assembly Mangers,
Inc., as Amici Curiae on behalf of Defendant and Respondent.

Bingham McCutchen, James L. Hunt and Dale E. Barnes for Major League Baseball, the National
Basketball Association, the National Football League and the National Hockey League as Amicus Curiae
on behalf of Defendant and Respondent.

Gus P. Coldebella, Acting General Counsel, United States Department of Homeland Security, Andrew J.
Puglia Levy, Deputy General Counsel, Gregory G. Katsas, Acting Assistant Attorney General, Jonathan F.
Cohn, Deputy Assistant Attorney General, Douglas N. Letter, Christopher J. Walker and Thomas M.
Bondy for The United States of America as Amicus Curiae on behalf of Defendant and Respondent.


Counsel who argued in Supreme Court (not intended for publication with opinion):

Ann Brick
American Civil Liberties Union Foundation of Northern California
39 Drumm Street
San Francisco, CA 94111
(415) 621-2493

Sonya D. Winner
Covington & Burling
One Front Street, 35th Floor
San Francisco, CA 94111
(415) 591-6000


Document Outline

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Petition for review after the Court of Appeal affirmed the judgment in a civil action. This case presents the following issues: (1) Did ticket holders of the San Francisco 49ers football team impliedly consent to the team's policy of conditioning admission to its stadium on submission to a patdown search when they purchased season tickets with knowledge of that policy? (2) If so, did that consent extinguish any reasonable expectation of privacy with respect to the searches as matter of law, such that the trial court was not required to consider the justifications in support of the policy or balance plaintiffs' privacy interests against the team's countervailing interests?

Opinion Information
Date:Citation:Docket Number:Category:Status:
Mon, 03/02/200945 Cal. 4th 992, 201 P.3d 472, 89 Cal. Rptr. 3d 594S155742Review - Civil Appealclosed; remittitur issued

Parties
1Sheehan, Daniel (Plaintiff and Appellant)
Represented by Mark A. White
Chapman Popik & White
650 California Street, 19th Floor
San Francisco, CA

2Sheehan, Daniel (Plaintiff and Appellant)
Represented by Ann Brick
ACLU Foundation of Northern California, Inc.
39 Drumm Street
San Francisco, CA

3Sheehan, Daniel (Plaintiff and Appellant)
Represented by Margaret Campbell Crosby
ACLU Foundation of Northern California, Inc.
39 Drumm Street
San Francisco, CA

4Sheehan, Kathleen (Plaintiff and Appellant)
Represented by Mark A. White
Chapman Popik & White
650 California Street, 19th Floor
San Francisco, CA

5San Francisco 49ers, Ltd. (Defendant and Respondent)
Represented by Sonya Diane Winner
Covington & Burling
1 Front Street, 35th Floor
San Francisco, CA

6San Francisco 49ers, Ltd. (Defendant and Respondent)
Represented by Jonathan Alan Patchen
Covington & Burling
1 Front Street, 35th Floor
San Francisco, CA

7Anschutz Entertainment Group, Inc. (Amicus curiae)
Represented by Ted Fikre
Anschutz Entertainment Group, Inc.
1111 S. Figueroa Street, Suite 3100
Los Angeles, CA

8Anschutz Entertainment Group, Inc. (Amicus curiae)
Represented by Paul D. Fogel
Reed, Smith, LLP
2 Embarcadero Center, Suite 2000
San Francisco, CA

9Employment Law Center (Amicus curiae)
Represented by Brad S. Seligman
The Impact Fund
125 University Avenue
Berkeley, CA

10Impact Fund (Amicus curiae)
Represented by Brad S. Seligman
The Impact Fund
125 University Avenue
Berkeley, CA

11International Association of Assembly Managers, Inc. (Amicus curiae)
Represented by Paul D. Fogel
Reed, Smith, LLP
2 Embarcadero Center, Suite 2000
San Francisco, CA

12Legal Aid Society (Amicus curiae)
Represented by Brad S. Seligman
The Impact Fund
125 University Avenue
Berkeley, CA

13Live Nation (Amicus curiae)
Represented by Paul D. Fogel
Reed, Smith, LLP
2 Embarcadero Center, Suite 2000
San Francisco, CA

14Live Nation (Amicus curiae)
Represented by Dennis Peter Maio
Reed, Smith, LLP
2 Embarcadero Center, Suite 2000
San Francisco, CA

15Live Nation (Amicus curiae)
Represented by Richard Anthony Munisteri
Live Nation
9348 Civic Center Drive
Beverly Hills, CA

16Major League Baseball (Amicus curiae)
Represented by James L. Hunt
Bingham McCutchen, LLP
3 Embarcadero Center, Suite 1800
San Francisco, CA

17Major League Baseball (Amicus curiae)
Represented by Dale Eugene Barnes
Bingham McCutchen, LLP
3 Embarcadero Center, Suite 1800
San Francisco, CA

18National Basketball Association (Amicus curiae)
Represented by James L. Hunt
Bingham McCutchen, LLP
3 Embarcadero Center, Suite 1800
San Francisco, CA

19National Football League (Amicus curiae)
Represented by James L. Hunt
Bingham McCutchen, LLP
3 Embarcadero Center, Suite 1800
San Francisco, CA

20National Hockey League (Amicus curiae)
Represented by James L. Hunt
Bingham McCutchen, LLP
3 Embarcadero Center, Suite 1800
San Francisco, CA

21Professional Sports Leagues (Amicus curiae)
Represented by James L. Hunt
Bingham McCutchen, LLP
3 Embarcadero Center, Suite 1800
San Francisco, CA

22Public Advocates, Inc. (Amicus curiae)
Represented by Brad S. Seligman
The Impact Fund
125 University Avenue
Berkeley, CA

23Rutherford Institute (Amicus curiae)
Represented by Eric Allen Grant
Attorney at Law
8001 Folsom Boulevard, Suite 100
Sacramento, CA

24Unite Here (Amicus curiae)
Represented by Michael Rubin
Altshuler Berzon Nussbaum
177 Post Street, Suite 300
San Francisco, CA

25United States Department of Justice (Amicus curiae)
Represented by Thomas Mark Bondy
United States Department of Justice
901 Pennsylvania Avenue N.W.
Washington, DC


Opinion Authors
OpinionJustice Ming W. Chin
ConcurJustice Kathryn M. Werdegar

Disposition
Mar 2 2009Opinion: Reversed

Dockets
Aug 27 2007Petition for review filed
  Daniel and Kathleen Sheehan, plaintiffs and appellants Mark White, Ann Brick, counsel c/a case record requested
Sep 17 20072nd record request
 
Sep 17 2007Answer to petition for review filed
  Respondent The San Francisco Forty Niners, Ltd. by Sonya D. Winner, Covington & Burling LLP, retained.
Sep 27 2007Reply to answer to petition filed
  Daniel and Kathleen Sheehan, appellants by Mark A. White, Chapman, Popik & White LLP, counsel of record
Sep 27 20073rd record request
 
Oct 1 2007Received Court of Appeal record
  A114945 -- two accordion files and separate briefs and appendix
Oct 10 2007Petition for review granted (civil case)
  Votes: George, C.J., Kennard, Werdegar, Chin, Moreno and Corrigan, JJ.
Oct 10 2007Letter sent to:
  All parties enclosing a copy of the grant order and the form for certification of interested entities or persons.
Oct 16 2007Certification of interested entities or persons filed
  by Sonya Diane Winner, Covington & Burling, Counsel for Respondent The San Francisco 49ers, Ltd.
Oct 19 2007Certification of interested entities or persons filed
  Mark A. White, Chapman Popik & White, counsel for appellants (Sheehan et al.)
Oct 25 2007Request for extension of time filed
  to and including December 12, 2007, to file Appellants Daniel and Kathleen Sheehan's Opening Brief on the Merits
Oct 31 2007Extension of time granted
  On application of appellants and good cause appearing, it is ordered that the time to serve and file Appellants' Opening Brief on the Merits is extended to and including December 12, 2007.
Dec 4 2007Request for extension of time filed
  to and including December 24, 2007, to file Appellant's Opening Brief on the Merits
Dec 7 2007Extension of time granted
  On application of appellants and good cause appearing, it is ordered that the time to serve and file the appellants' opening brief on the merits is extended to and including December 24, 2007.
Dec 21 2007Opening brief on the merits filed
  Appellants Daniel and Kathleen Sheehan by Mark A. White, Chapman Popik & White LLP, counsel and by Margaret C. Crosby, ACLU Northern California, co-counsel
Jan 11 2008Request for extension of time filed
  to and including March 24, 2008 (60 days) to file the respondent's answer brief on the merits
Jan 16 2008Extension of time granted
  On application of respondent and good cause appearing, it is ordered that the time to serve and file the answer brief on the merits is extended to and including March 24, 2008.
Mar 24 2008Answer brief on the merits filed
  The San Francisco Forty Niners, Ltd., respondent by Sonya D. Winner, Covington & Burling LLP, counsel
Mar 24 2008Request for judicial notice filed (granted case)
  Respondent The SanFrancisco Forty Niners, Ltd. by Sonya D. Winner, Covington & Burling LLP, counsel
Apr 1 2008Request for extension of time filed
  to and including May 9, 2008 to file appellants' reply brief on the merits
Apr 4 2008Extension of time granted
  On application of appellants and good cause appearing, it is ordered that the time to serve and file Appellants' Reply Brief on the Merits is extended to and including May 9, 2008.
May 9 2008Received:
  Appellants' oversized reply brief on the merits.
May 9 2008Application to file over-length brief filed
  Daniel and Kathleen Sheehan, Appellants by Mark A. White, counsel
May 13 2008Reply brief filed (case fully briefed)
  With permission Daniel and Kathleen Sheehan, Appellants by Mark A. White
Jun 6 2008Received application to file Amicus Curiae Brief
  and Amici Curiae Brief of Impact Fund, Legal Aid Society, Employment Law Center and Public Advocates, Inc., in support of appellants by Brad Seligman, counsel
Jun 9 2008Received application to file Amicus Curiae Brief
  and brief of Unite Here in support of appellants by Michael Rubin, Altshuler Berzon LLP, counsel
Jun 11 2008Received application to file Amicus Curiae Brief
  Amici Curiae Professional Sports Leagues, Major League Baseball, The National Basketball Association, The National Football League, and the National Hockey League in support of respondent by James L. Hunt, Bingham McCutchen LLP, counsel
Jun 11 2008Received application to file Amicus Curiae Brief
  United States of America, United States Department of Justice, in support of respondent by Thomas M. Bondy, Appellate Staff Attorney, United States Department of Justice
Jun 12 2008Received application to file Amicus Curiae Brief
  Amici Curiae Live Nation, Anschutz Entertainment Group, Inc., and the International Association of Assembly Managers, Inc., in support of respondent by Paul D. Fogel and Dennis Peter Maio, Reed Smsith LLP
Jun 12 2008Received application to file Amicus Curiae Brief
  The Rutherford Institute in support of appellants by Eric Grant, counsel
Jun 17 2008Permission to file amicus curiae brief granted
  The application of Unite Here for permission to file an amicus curiae brief in support of apppellants is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Jun 17 2008Amicus curiae brief filed
  Unite Here in support of appellants by Michael Rubin and Peder J. Thoreen, Altshuler Berzon LLP
Jun 17 2008Permission to file amicus curiae brief granted
  The application of Impact Fund, Legal Aid Society, Employment Law Center and Public Advocates, Inc. for permission to file an amici curiae brief in support of appellants is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Jun 17 2008Amicus curiae brief filed
  Amici Curiae Impact Fund, Legal Aid Society, Employment Law Center and Public Advocates, Inc. in support of appellants by Brad Seligman and Alvaro D. Soria, Impact Fund, counsel
Jun 17 2008Permission to file amicus curiae brief granted
  The application of The United States of America, United States Department of Justice, for permission to file an amicus curiae brief in support of respondent is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Jun 17 2008Amicus curiae brief filed
  The United States of America, United States Department of Justice in support of respondent by Thomas M. Bondy, Attorney, Appellate Staff, U.S. Dept of Justice, Washington, D. C.
Jun 17 2008Permission to file amicus curiae brief granted
  The application of Professional Sports Leagues, Major League Baseball, The National Basketball Association, The National Football League, and The National Hockey League for permission to file an amici curiae brief in support of respondent is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Jun 17 2008Amicus curiae brief filed
  Amici Curiae Professional Sports Leagues, Major League Baseball, The National Basketball Association, The National Football league, and The National Hockey League in support of respondent by James L. Hunt, Dale E. Barnes, Bingham McCutchen LLP, counsel
Jun 17 2008Permission to file amicus curiae brief granted
  The application of The Rutherford Institute for permission to file an amicus curiae brief in support of appellants is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Jun 17 2008Amicus curiae brief filed
  The The Rutherford Institute in support of appellants by Eric Grant, Esq.
Jun 17 2008Permission to file amicus curiae brief granted
  The applicationo f Live Nation, Anschutz Entertainment Group, Inc., and the International Association of Assembly Managers, Inc. for permission to file an amicus curiae brief in support of respondent is hereby granted. An answer thereto may be served and filed by any party within twenty days of the fiilng of the brief.
Jun 17 2008Amicus curiae brief filed
  Live Nationa, Anschutz Entertainment Group, Inc. and the International Association of Assembly managers, Inc. in support of respondent by Paul D. Fogel and Dennis Peter Maio, Reed Smith LLP, counsel
Jun 24 2008Request for extension of time filed
  Joint Application of appellants and respondents for a 39-day extension of time, to and including August 15, 2008, within which to file their respective consolidated answers to the briefs amicus curiae
Jun 25 2008Extension of time granted
  On joint application of appellants and respondent and good cause appearing, it is ordered that the time to serve and file their respective consolidated answers to the amicus curiae briefs is extended to and including August 15, 2008.
Jul 11 2008Supplemental brief filed
  The San Francisco Forty Niners, Ltd., respondent by Sonya D. Winner, Covington & Burling LLP, counsel
Aug 11 2008Received:
  Notice of Errata to Appellant's (San Francisco 49ers) answer brief on the merits by William V. Goldfarb, Covington & Burling LLP, counsel
Aug 15 2008Response to amicus curiae brief filed
  Appellants' Response to Briefs of Amici on behalf of San Francisco 49ers, Ltd. and in Answer to Respondent's Supplemental Brief on Johnston v Tampa Sports Aurhority by Mark A. White, Chapman Popik & White LLP
Aug 15 2008Response to amicus curiae brief filed
  **JOINT RESPONSE** by the San Francisco Forty Niners, Inc., respondent by Sonya D. Winner, Counsel
Dec 10 2008Case ordered on calendar
  to be argued on Tuesday, January 6, 2009, at 9:00 a.m., in San Francisco
Dec 24 2008Request for judicial notice granted
  The request for judicial notice filed on March 24, 2008, is granted.
Jan 6 2009Cause argued and submitted
 
Feb 27 2009Notice of forthcoming opinion posted
 
Mar 2 2009Opinion filed: Judgment reversed
  We reverse the judgment of the Court of Appeal and remand the matter for further proceedings consistent with this opinion. Majority Opinion by: Chin, J. -- Joined by Kennard, Baxter, Corrigan, JJ. Concurring Opinion by: Werdegar, J. -- Joined by George, C.J., Moreno, J.
Apr 15 2009Remittitur issued
 
Apr 23 2009Received:
  Acknowledgment of receipt for remittitur from First District, Div. 4, signed for by Channing Hoo, Deputy Clerk

Briefs
Dec 21 2007Opening brief on the merits filed
 
Mar 24 2008Answer brief on the merits filed
 
May 13 2008Reply brief filed (case fully briefed)
 
Jun 17 2008Amicus curiae brief filed
 
Jun 17 2008Amicus curiae brief filed
 
Jun 17 2008Amicus curiae brief filed
 
Jun 17 2008Amicus curiae brief filed
 
Jun 17 2008Amicus curiae brief filed
 
Jun 17 2008Amicus curiae brief filed
 
Aug 15 2008Response to amicus curiae brief filed
 
Aug 15 2008Response to amicus curiae brief filed
 
Brief Downloads
application/pdf icon
Shaheen Petition for Review.pdf (1764923 bytes) - Petition for Review
application/pdf icon
49ers Response to Petition for Review.pdf (1435894 bytes) - Response to Petition to Review
application/pdf icon
Shaheen Reply for in Support of Petition to Review.pdf (540709 bytes) - Shaheen Reply in Support of Petition to Review
application/pdf icon
Appellants Opening Brief.pdf (1242991 bytes) - Appellant's Opening Brief
application/pdf icon
Respondents Opening Brief.pdf (2998755 bytes) - Respondent's Opening Brief
application/pdf icon
Shaheen Reply Brief on the Merits.pdf (728724 bytes) - Appellant's Reply Brief on the Merits
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website
May 27, 2010
Annotated by cgrieco

Procedural Posture:

Plaintiffs moved for injunctive and declaratory relief against the pat down searches of patrons to 49ers football games as violations of a state constitutional right to privacy. The pat downs were conducted under the guidance and observation of the San Francisco Police Department.

The 49ers moved for demurrer stating that the complaint did not contain a cause of action. The trial court permitted the plaintiffs to modify their complaint to show that they had renewed their season tickets in the years following the original complaint filing. The Trial Court dismissed the complaint and plaintiffs appealed.

The Court of Appeals agreed with the dismissal stating "that the Sheehans cannot demonstrate that they had a reasonable expectation of privacy under the circumstances . . . .” The Appeals Court explained that “rather than submit to the pat-down the Sheehans had the choice of walking away, no questions asked.”

Opinion:
The California Constitution, article I, section 1, provides, “All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.” The issue before the Supreme Court was whether the searches violated their state constitutional right to privacy as the plaintiffs alleged.

The Supreme Court never came to a conclusion on this issue. Instead, they returned the case to the trial court for further evaluation of the factual record. They stated "The Court of Appeal held that plaintiffs validly consented to the search policy. It may ultimately be right, but the meager record before us does not establish valid consent as a matter of law. In particular, the 49ers’ have not demonstrated that the allegations of the complaint fail to state a cause of action under any possible legal theory. Further factual development is necessary."

Under the current interpretation of the state constitution, a plaintiff must show that there is a reasonable expectation of privacy at the time. The record on this point was not clear enough for the Court to rule on because the only factual record was the complaint itself, without any understanding of the "competing social interests."

Also at issue was whether or not the plaintiffs had given voluntary consent (looked at under the totality of the circumstances). Again the record was unclear, but under state law, that is a waiver of the violation of privacy in most situations.

Concurring Opinion:
The concuring opinion focuses on the procedure of the case rather and takes issue with the dicta contained in the first opinion. Judge Werdegar states "the question before us is whether or not the Sheehans can conceivably make out any privacy claim. Because privacy claims typically involve a fact-dependent weighing, resolution of such claims on demurrer is rare."

Because of that, Judge Werdegar "would affirmatively conclude the Sheehans have stated a prima facie case" and "return this case to the trial court for resolution on a fully developed record."

Issues: consent, licenses, pat down searches, Privacy, Demurrer

By Christopher K Grieco