author: Jones, J.

text:
    [ 886 NE2d 769, 857 NYS2d 8]
    Cedric Fleming et al., Plaintiffs, v Thomas Graham et al., Defendants and Third-Party Plaintiffs-Respondents. Pinstripes Garment Services, LLC, Third-Party Defendant-Appellant.
    Argued February 13, 2008;
    decided March 20, 2008

      POINTS OF COUNSEL

      Baxter, Smith, Tassan & Shapiro, P.C., Jericho (Robert C. Baxter and Sim R. Shapiro of counsel), and Gregory Allen for third-party defendant-appellant.
    I. The Appellate Division, Second Department erred in holding that Pinstripes Garment Services, LLC failed to meet its burden to show that plaintiff did not sustain a “grave injury.” (Castro v United Container Mach. Group, 96 NY2d 398; Rubeis v Aqua Club, Inc., 3 NY3d 408; Dunn v Smithtown Bancorp, 286 AD2d 701; Way v Grantling, 289 AD2d 790; Flores v Lower E. Side Serv. Ctr., Inc., 4 NY3d 363; Meis v ELO Org., 97 NY2d 714; Matter of Board of Educ. of Syracuse City School Dist. v State Div. of Human Rights, 38 AD2d 245; Krollman v Food Automation Serv. Techniques, Inc., 13 AD3d 1209; Rosen v Nygren Dahly Co., 1 AD3d 998; Sergeant v Murphy Family Trust, 292 AD2d 761.) II. Summary judgment should have also been granted because defendant and third-party plaintiff-respondent failed to yield the right-of-way to Pinstripes Garment Services, LLC’s approaching vehicle. (Galvin v Zacholl, 302 AD2d 965; Lubitz v Village of Scarsdale, 31 AD3d 618; Agin v Rehfeldt, 284 AD2d 352; Almonte v Tobias, 36 AD3d 636; Gabler v Marly Bldg. Supply Corp., 27 AD3d 519; Stiles v County of Dutchess, 278 AD2d 304; Russo v Scibetti, 298 AD2d 514; Welch v Norman, 282 AD2d 448; Cenovski v Lee, 266 AD2d 424; Troche v New York City Tr. Auth., 16 AD3d 407.)

      Mauro Goldberg & Lilling LLP, Great Neck (Barbara DeCrow Goldberg and Anthony F. DeStefano of counsel), and Marshall, Conway, Wright & Bradley for defendants and third-party plaintiffs-respondents.
    I. It is for the factfinder to determine, with guidance from this Court, whether Cedric Fleming’s facial disfigurement is “severe” enough to constitute a “grave injury.” (Fitzpatrick v Chase Manhattan Bank, 285 AD2d 487; Rubeis v Aqua Club, Inc., 3 NY3d 408; Dietrick v Kemper Ins. Co. [American Motorists Ins. Co.], 76 NY2d 248; Smith v Mouawad, 91 AD2d 700; Matter of Leone v Bricklayers Masons & Plasterers Intl. Union No. 83, 59 AD2d 812; Waldron v Wild, 96 AD2d 190; Cushing v Seemann, 247 AD2d 891; Hutchinson v Beth Cab Corp., 204 AD2d 151; Zulawski v Zulawski, 170 AD2d 979; Landsman v Bunker, 142 AD2d 986.) II. The issue of liability is not properly before this Court. Thus, the Appellate Division correctly affirmed the denial of Pinstripes Garment Services, LLC’s motion. In any event, even if this Court considered Pinstripes’ arguments on liability on their merits, Pinstripes is still not entitled to summary judgment. (Herrick v Second Cuthouse, 64 NY2d 692; Patrician Plastic Corp. v Bernadel Realty Corp., 25 NY2d 599; Calemine v Hobler, 263 AD2d 495; Bogorad v Fitzpatrick, 38 AD2d 923, 31 NY2d 984; Young v Mauch, 268 AD2d 583; Thomas v Holzberg, 300 AD2d 10; Canceleno v Johnston, 264 AD2d 405; Bagnato v Romano, 179 AD2d 713; Shea v Judson, 283 NY 393; Galvin v Zacholl, 302 AD2d 965.)
   OPINION OF THE COURT

Jones, J.

The issue in this case is whether plaintiffs facial injuries constituted a “permanent and severe facial disfigurement” for purposes of qualifying as a “grave injury” under Workers’ Compensation Law § 11. Under the facts of this case, we hold that they do not.

Following a collision between a van driven by a Pinstripes Garment Services, LLC employee and a school bus driven by an employee of Evergreen Bus Service, Inc., plaintiff Cedric Fleming (a Pinstripes employee and passenger in the van) sustained multiple facial injuries resulting in scars on his forehead and right upper eyelid. Fleming sued Evergreen and its bus driver for negligence. Evergreen commenced a third-party action against Pinstripes for common-law indemnity and/or contribution pursuant to Workers’ Compensation Law § 11 on the theory that Fleming sustained a “permanent and severe facial disfigurement.” Pinstripes subsequently moved for summary judgment dismissing the third-party complaint on the ground that Fleming’s injuries were not “grave.”

Supreme Court denied Pinstripes’ motion, concluding that questions of fact existed. The court relied on an unsworn report of the first-party defendant’s expert who opined that some of Fleming’s scars could not be improved. The court also stated that Fleming’s “numerous facial scars . . . [were] plainly visible to the observer” (2005 NY Slip Op 30268[U], *8). The Appellate Division affirmed, concluding that photographs of Fleming’s face “did not clearly show that [his] facial scarring was not a severe facial disfigurement” (Fleming v Graham, 34 AD3d 525, 527 [2d Dept 2006]). We now reverse.

Absent an express indemnification agreement, or a “grave injury” as enumerated in Workers’ Compensation Law § 11, an employer’s liability for an employee’s on-the-job injury is ordinarily limited to workers’ compensation benefits (see Tonking v Port Auth. of N.Y. & N.J., 3 NY3d 486, 490 [2004]). Where a “grave injury” results, a primary defendant may commence a third-party action against the injured plaintiffs employer for common-law indemnification and/or contribution. This case requires us to articulate a standard for assessing claims of “permanent and severe facial disfigurement.”

Our analysis begins and ends with the legislative goal of the Omnibus Workers’ Compensation Reform Act of 1996, which enacted the third paragraph of section 11. Before 1996, first-party defendants were free to implead an injured plaintiff’s employer in a personal injury action for “unlimited contribution or indemnification” (Governor’s Approval Mem, Bill Jacket, L 1996, ch 635, at 54). Allowing such unfettered third-party actions undermined the employer’s reliance upon workers’ compensation benefits as its exclusive liability.

The purpose of the 1996 legislation was “to reduce costs for employers while also protecting the interests of injured workers” (Rubeis v Aqua Club, Inc., 3 NY3d 408, 415 [2004]). Section 11 thus serves to protect employers by barring third-party actions against them “except in extremely limited, defined circumstances” (Castro v United Container Mach. Group, 96 NY2d 398, 402 [2001] [emphasis added]; see also Minkowitz, Practice Commentaries, McKinney’s Cons Laws of NY, Book 64, Workers’ Compensation Law § 11, at 444 [“Section 11 was written with the obvious, deliberate intention of ensuring preservation of the concept of the Workers’ Compensation Law being the employer’s exclusive liability to its employees”]). The categories of grave injuries listed in section 11, providing the sole bases for a third-party action, “are deliberately both narrowly and completely described”; the list, both “exhaustive” and “not illustrative,” is “not intended to be extended absent further legislative action” (Governor’s Approval Mem at 55 [emphasis added]).

What constitutes “permanent and severe facial disfigurement” is unlike most of the other enumerated “grave” injuries, which are, on the whole, amenable to “objectively ascertainable” determinations as a matter of law (Rubeis, 3 NY3d at 417; see also Meis v ELO Org., 97 NY2d 714, 716 [2002] [loss of thumb is not a “permanent and total loss of use” of a hand]; Castro, 96 NY2d at 401 [“ Toss of multiple fingers’ cannot sensibly be read to mean partial loss of multiple fingers”]). Generally, courts have been able to conclusively say, one way or the other, whether an injury is or is not so “severe” for section 11 purposes (see e.g. Rosen v Nygren Dahly Co., 1 AD3d 998, 998 [4th Dept 2003] [minor facial scarring insufficient as a matter of law]; Krollman v Food Automation Serv. Techniques, Inc., 13 AD3d 1209, 1210 [4th Dept 2004] [three-millimeter scar above eyebrow and “some mottling of her cheeks” insufficient]; Giblin v Pine Ridge Log Homes, Inc., 42 AD3d 705, 707 [3d Dept 2007] [loss of eye, though a permanent condition, not a severe disfigurement where use of prosthesis leaves only negligible alteration in facial appearance]). However, these determinations have been rendered without the aid of a reliable, fairly predictable legal guidepost.

In construing the statute we follow two fundamental principles: first, we implement the intent of the Legislature. Second, we construe statutory words in light of “their plain meaning without resort to -forced or unnatural interpretations” (Castro, 96 NY2d at 401). The statutory purpose of section 11, as explained above, is clear. Turning to the critical statutory words, we note initially that permanency and severity are both conditions precedent to a finding of “facial disfigurement.” With competent medical evidence, a court may generally determine whether a facial disfigurement is permanent. Severity presents a different inquiry. Consistent with the legislative intent behind section 11, we conclude that “severity” implies a highly limited class of disfiguring injuries beyond minor scarring or lacerations.

“Severe” is variously defined as something “[clausing sharp discomfort or distress” (American Heritage Dictionary 1248 [3d ed 2000]) or something “[e]xtremely intense,” as in “severe pain” (Webster’s II New College Dictionary 1012 [1995]; see also Webster’s Third New International Dictionary, Unabridged [2008] [something “of a great degree or an undesirable or harmful extent” (emphasis added)]). Plainly, the specification of “severe” in the statute points to the greater end of the disfigurement spectrum (see Blackburn v Wysong & Miles Co., 11 AD3d 421, 422 [2d Dept 2004] [“(g)rave injury is a statutorily-defined threshold for catastrophic injuries” (emphasis added)]).

As for “disfigurement,” one definition seems to capture the essence of the word well: “that which impairs or injures the beauty, symmetry or appearance of a person or thing; that which renders unsightly, misshapen or imperfect or deforms in some manner” (Pilato v Nigel Enters., Inc., 48 AD3d 1133, 1135-1136 [4th Dept 2008]; see also Giblin, 42 AD3d at 707; Superior Min. Co. v Industrial Commn., 309 Ill. 339, 340-341, 141 NE 165 [1923]).

While no conceivable standard can capture in toto the highly limited class of “severe” facial disfigurements contemplated by section 11, we nonetheless conclude that an injury disfigures the face when it detrimentally alters the plaintiff’s natural beauty, symmetry or appearance, or otherwise deforms. A disfigurement is severe if a reasonable person viewing the plaintiffs face in its altered state would regard the condition as abhorrently distressing, highly objectionable, shocking or extremely unsightly. In finding that a disfigurement is severe, plaintiffs injury must greatly alter the appearance of the face from its appearance before the accident. The foregoing standard, ordinarily one for the court as a matter of law, removes the inquiry from plaintiffs subjective self-assessment and most closely approximates what the Legislature contemplated.

In this case, Pinstripes demonstrated that no material issue of fact remains and it is thus entitled to summary judgment on the basis that Fleming did not sustain a permanent and severe facial disfigurement (see Cox v Kingsboro Med. Group, 88 NY2d 904, 906 [1996]). The photographs in the record show numerous scars. However, they demonstrate a steady progression from the initial injuries to scarring, to significant recovery. Although first-party defendant’s expert implied that Fleming’s scars are permanent, his report indicated that revisions were possible. Even aside from the evidentiary value of the report and, indeed, the question of permanency, whether Fleming’s disfigurement is “severe” remains for us to decide. While in some cases that question is one properly for the factfinder, we determine that, on the facts of this case, Fleming’s injuries do not rise to the level of a “severe” disfigurement. Although there are cases where a reasonable person might view multiple scarring as satisfying the standard we articulate here, this is not one of them.

Accordingly, the Appellate Division order should be reversed, with costs, third-party defendant’s motion for summary judgment dismissing the third-party complaint granted and the certified question answered in the negative.

Chief Judge Kaye and Judges Ciparick, Graffeo, Read, Smith and Pigott concur.

Order reversed, etc.

       Section 11 states, in part:
      “An employer shall not be liable for contribution or indemnity to any third person based upon liability for injuries sustained by an employee acting within the scope of his or her employment for such employer unless such third person proves through competent medical evidence that such employee has sustained a ‘grave injury’ which shall mean only one or more of the following-, death, permanent and total loss of use or amputation of an arm, leg, hand or foot, loss of multiple fingers, loss of" multiple toes, paraplegia or quadriplegia, total and permanent blindness, total and permanent deafness, loss of nose, loss of ear, permanent and severe facial disfigurement, loss of an index finger or an acquired injury to the brain caused by an external physical force resulting in permanent total disability” (emphasis added).


source: Caselaw Access Project

author: Graffeo, J. Ciparick, J. (concurring). Smith, J. (dissenting in part).

license: Public Domain

text:
    [ 886 NE2d 162, 856 NYS2d 540]
    The People of the State of New York, Respondent, v Azim Hall, Appellant.
    Argued February 7, 2008;
    decided March 25, 2008

      POINTS OF COUNSEL

      Center for Appellate Litigation, New York City (Barbara Zolot and Robert S. Dean of counsel), for appellant.
    I. The drugs recovered from appellant following his arrest must be suppressed because there were no exigent circumstances justifying the warrantless body cavity search incident to arrest that the police conducted at the precinct solely for the purpose of finding evidence. (Katz v United States, 389 US 347; People v Diaz, 81 NY2d 106; United States v Robinson, 414 US 218; Schmerber v California, 384 US 757; Chimel v California, 395 US 752; United States v Edwards, 415 US 800; People v More, 283 AD2d 715; Blackburn v Snow, 771 F2d 556; Fuller v M.G. Jewelry, 950 F2d 1437; Bell v Wolfish, 441 US 520.) II. The initial “strip search” was itself unconstitutional. (People v De Bour, 40 NY2d 210; Illinois v Lafayette, 462 US 640; Weber v Dell, 804 F2d 796, cert denied sub nom. County of Monroe v Weber, 483 US 1020; Sarnicola v County of Westchester, 229 F Supp 2d 259; Swain v Spinney, 117 F3d 1; People v Barnville, 31 AD3d 271; People v Kelley, 306 AD2d 699; United States v Montoya de Hernandez, 473 US 531; People v P.J. Video, 68 NY2d 296; People v Scott, 79 NY2d 474.)

      Robert M. Morgenthau, District Attorney, New York City (Eric Rosen and Vincent Rivellese of counsel), for respondent.
    The strip and visual body cavity search of defendant at the police station house subsequent to his lawful arrest for the felony sale of narcotics was entirely reasonable. (Schmerber v California, 384 US 757; People v More, 97 NY2d 209; Bell v Wolfish, 441 US 520; United States v Robinson, 414 US 218; United States v Edwards, 415 US 800; Chimel v California, 395 US 752; Knowles v Iowa, 525 US 113; Illinois v Lafayette, 462 US 640; Swain v Spinney, 117 F3d 1; Chapman v Nichols, 989 F2d 393.)
   OPINION OF THE COURT

Graffeo, J.

In this case, we must consider whether it is constitutionally permissible for police to subject a person arrested for a drug sale to a visual body inspection followed by a body cavity search without first obtaining a warrant. We conclude that a visual body inspection may be conducted if the police have a factual basis supporting a reasonable suspicion that the arrestee has evidence concealed inside a body cavity and the search is conducted in a reasonable manner. If the visual inspection reveals the presence of a suspicious object, the police must obtain a warrant authorizing the object’s removal unless there are exigent circumstances.

I

During the evening of February 10, 2005, a team of police officers conducted a narcotics interdiction operation in Manhattan. Sergeant Burnes, a 20-year police veteran with extensive drug arrest experience, was stationed on the roof of a building observing individuals on the street below through binoculars. Burnes saw a man named Meyers that he recognized from the neighborhood standing outside a bodega. Two individuals approached Meyers, spoke with him and handed him money. Meyers then walked over to defendant, conversed briefly with him and gave him the cash.

Defendant went into the bodega while Meyers stood near the front door. After being inside the store for about three minutes, defendant reappeared and handed something to Meyers. Meyers approached the individuals who had given him the money and held out his hand to them. Sergeant Burnes observed two small, white objects in Meyers’ hand that appeared to be crack cocaine. Each of the men took one piece and departed. A short time later, defendant and Meyers walked away from the bodega, heading in different directions. Burnes then contacted officer Spiegel on the street using radio communication and eventually defendant and Meyers were taken into police custody.

Defendant was transported to a police station where Spiegel searched his clothing but no drugs were found. Spiegel placed defendant in a private detention cell and asked him to remove his clothing. Burnes entered the cell and defendant was ordered to bend over or squat, at which point Spiegel and Burnes observed a string or piece of plastic hanging out of defendant’s rectum. Believing that the string was attached to a package of drugs hidden inside defendant’s body, Burnes ordered defendant to remove the object. When defendant refused, Spiegel proceeded to hold defendant while Burnes pulled on the string and removed a plastic bag that was found to contain crack cocaine.

Defendant was indicted for criminal possession of a controlled substance in the third and fifth degrees. Prior to trial, he moved to suppress the drugs taken from his body, claiming that the police were required to obtain a warrant before examining his body cavity. Supreme Court granted the motion and dismissed the indictment. The Appellate Division reversed, concluding that the visual inspection of defendant’s body cavity was permissible because the police had reasonable suspicion to believe that defendant had narcotics hidden inside his body and that, once the string was discovered, the police were allowed to immediately retrieve the drugs without first obtaining a warrant. A Judge of this Court granted leave.

II

There are three distinct and increasingly intrusive types of bodily examinations undertaken by law enforcement after certain arrests and it is critical to differentiate between these categories of searches. A “strip search” requires the arrestee to disrobe so that a police officer can visually inspect the person’s body. The second type of examination—a “visual body cavity inspection”—occurs when a police officer looks at the arrestee’s anal or genital cavities, usually by asking the arrestee to bend over; however, the officer does not touch the arrestee’s body cavity. In contrast, a “manual body cavity search” includes some degree of touching or probing of a body cavity that causes a physical intrusion beyond the body’s surface.

The preeminent decision examining the constitutional dimensions of searches that involve police intrusion into a person’s body is Schmerber v California (384 US 757 [1966]). In that case, a police officer had a physician at a hospital draw a blood sample to determine the level of alcohol that was in the blood of an individual arrested after a motor vehicle accident. Recognizing that “interests in human dignity and privacy” arise whenever the police need to enter a person’s body to secure evidence, the United States Supreme Court concluded that a lawful arrest alone does not justify police intrusion into a person’s body (id. at 769-770). Rather, there must be “a clear indication that . . . [relevant] evidence will be found” inside an arrestee’s body and a search warrant authorizing the seizure of evidence must be obtained unless an emergency situation exists (id. at 770). In Schmerber, the Supreme Court determined that the blood evidence was legally obtained and admissible because the extraction was performed in a reasonable manner under exigent circumstances.

Although Schmerber did not address the constitutionality of less intrusive visual inspections of an arrestee’s body, postSchmerber precedent demonstrates considerable judicial consensus concluding that visual body inspections are constitutionally distinct from searches that require the police to intrude beyond the surface of a person’s body and that the two types of searches are therefore subject to different legal standards. In Bell v Wolfish (441 US 520 [1979]), the United States Supreme Court upheld the blanket policy of a pretrial detention center that conducted visual body cavity examinations of detainees following visitations with persons from outside the facility. In assessing the legality of this practice under the Fourth Amendment, the Supreme Court explained that various factors should be considered, including “the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted” (id. at 559). Weighing these interests, along with the fact that the smuggling of contraband was a frequent problem posing significant security concerns for detention centers, the Court held that such visual cavity searches of pretrial detainees could be conducted on less than probable cause grounds so long as they were conducted in a reasonable manner (id. at 559-560).

The Supreme Court has yet to address the question of whether warrantless strip searches of persons arrested—as opposed to pretrial detainees—can be performed in a manner that satisfies constitutional requirements (see Illinois v Lafayette, 462 US 640, 646 n 2 [1983]). Nevertheless, it is clear that reasonableness is the “ultimate touchstone of the Fourth Amendment” (Brigham City, Utah v Stuart, 547 US 398, 403 [2006]; see Wolfish, 441 US at 558 [the “Fourth Amendment prohibits only unreasonable searches”]). Our task, then, is to determine whether it is reasonable to draw a constitutional distinction between a visual inspection of an arrestee’s body (which requires no touching of the person’s body whatsoever) and a manual body cavity search (which necessarily results in an intrusion beyond the body’s surface and possibly the removal of an object or the insertion of an instrument into an orifice).

The majority of appellate courts to consider the propriety of visual inspections have applied the reasoning of Wolfish and recognized that the difference in the degree of intrusiveness between visual and manual body cavity searches provides ample justification for applying a standard less stringent than Schmerber to visual cavity inspections of arrestees. Thus, it has been held that a visual body cavity search of an arrestee may be justified by a reasonable suspicion that the arrestee is concealing a weapon or contraband (see Swain v Spinney, 117 F3d 1, 5 [1st Cir 1997]), which could be supported by consideration of “the crime charged, the particular characteristics of the arrestee, and/or the circumstances of the arrest” (Weber v Dell, 804 F2d 796, 802 [2d Cir 1986], cert denied sub nom. County of Monroe v Weber, 483 US 1020 [1987]; see e.g. Campbell v Miller, 499 F3d 711, 718 [7th Cir 2007]; Stewart v Lubbock County, Tex., 767 F2d 153, 156-157 [5th Cir 1985], cert denied 475 US 1066 [1986]; Mary Beth G. v City of Chicago, 723 F2d 1263, 1273 [7th Cir 1983]; Sarnicola v County of Westchester, 229 F Supp 2d 259, 269-271 [SD NY 2002]; see also Blackburn v Snow, 771 F2d at 562; but see Fuller v M.G. Jewelry, 950 F2d 1437, 1448-1449 [9th Cir 1991]).

These decisions stand for the principle that the Fourth Amendment does not prohibit a visual cavity inspection if the police have at least a reasonable suspicion to believe that contraband, evidence or a weapon is hidden inside the arrestee’s body. As the balancing test in Wolfish suggests, the “reasonable suspicion” standard must take into account the nature of the crime charged, the circumstances of the arrest and the scope of the particular intrusion. Unlike manual body cavity searches, strip searches and visual cavity inspections do not create a risk of physical pain or injury to arrestees. Because a manual cavity search is more intrusive and gives rise to heightened privacy and health concerns, when weighed against the legitimate needs of law enforcement, we believe it should be subject to a stricter legal standard.

The concurrence maintains that Wolfish is not particularly relevant to the assessment of whether reasonable suspicion should govern visual cavity inspections because it focused on the need to maintain institutional security (see concurring op at 316-317). It is true that Wolfish addressed security concerns that are not present in this case. But this alone does not render the rationale and analytical framework of Wolfish irrelevant. Wolfish recognized that there is a legitimate interest in preventing drugs from being distributed in a secure law enforcement facility (see Wolfish, 441 US at 559)—which a police station surely is—and the Supreme Court has repeatedly reiterated that there is nothing unreasonable about allowing the police to conduct a search of an arrestee incident to an arrest for the purpose of preserving evidence (see e.g. Knowles v Iowa, 525 US 113, 116 [1998]; United States v Robinson, 414 US 218, 234-235 [1973]).

Schmerber, however, dictates that a more stringent standard be applied to a physical search of an arrestee’s body cavity. Our most recent decision addressing a search into a person’s body is People v More (97 NY2d 209 [2002]). In that case, the police entered a residence and found the defendant sitting near drugs and drug paraphernalia. They took him into a room in the apartment, had him remove his clothing and made him bend at the waist to check whether he had drugs hidden between his buttocks. When the police saw a plastic bag protruding from the defendant’s rectum, they forcibly removed it.

We recognized that a search of this nature was “at least as intrusive as [the] blood test procedures” in Schmerber (id. at 213). As a result, the actions of the police were constitutionally permissible only if the People could satisfy the clear indication and exigent circumstance requirements of Schmerber. We determined that the record before us was “devoid of any evidence from which an officer ‘might reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant’ posed a threat to the officer’s personal safety or of the destruction of the evidence” (id. at 214, quoting Schmerber, 384 US at 770). Because there were no exigent circumstances supporting the warrantless intrusion into the suspect’s body, we held that the removal of the object from the defendant’s rectum without prior judicial authorization violated the Fourth Amendment (see More, 97 NY2d at 214).

Summarizing the relevant constitutional precedent, it is clear that a strip search must be founded on a reasonable suspicion that the arrestee is concealing evidence underneath clothing and the search must be conducted in a reasonable manner. To advance to the next level required for a visual cavity inspection, the police must have a specific, articulable factual basis supporting a reasonable suspicion to believe the arrestee secreted evidence inside a body cavity and the visual inspection must be conducted reasonably. If an object is visually detected or other information provides probable cause that an object is hidden inside the arrestee’s body, Schmerber dictates that a warrant be obtained before conducting a body cavity search unless an emergency situation exists. Under our decision in More, the removal of an object protruding from a body cavity, regardless of whether any insertion into the body cavity is necessary, is subject to the Schmerber rule and cannot be accomplished without a warrant unless exigent circumstances reasonably prevent the police from seeking prior judicial authorization.

It is important to emphasize that visual cavity inspections and manual body cavity searches cannot be routinely undertaken as incident to all drug arrests or permitted under a police department’s blanket policy that subjects persons suspected of certain crimes to these procedures. There must be particular, individualized facts known to the police that justify subjecting an arrestee to these procedures (see generally People v McIntosh, 96 NY2d 521, 525 [2001]). Our precedent on this point is unequivocal: the police are required to have “specific and articulable facts which, along with any logical deductions, reasonably prompted th[e] intrusion” (People v Cantor, 36 NY2d 106, 113 [1975]), although they are allowed to “draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that might well elude an untrained person” (United States v Arvizu, 534 US 266, 273 [2002] [internal quotation marks omitted]). In addition, the reasonableness of the manner in which the search is conducted should be evaluated by reference to where, how and by whom the inspection occurred (e.g., usually in a private location, by a person of the same gender and without causing the arrestee to suffer further undue humiliation).

Ill

Applying the reasonable suspicion standard to the facts of this case, the record supports the conclusion of the Appellate Division that the strip search and visual cavity inspection of defendant’s body were constitutionally valid because the particular facts, viewed objectively and in their totality, provided the police with reasonable suspicion that defendant had drugs secreted underneath his clothing and possibly in his body. Defendant had been observed engaging in a hand-to-hand sale of two small quantities of crack cocaine (see Campbell v Miller, 499 F3d at 718 [the police may consider the nature of the crime the defendant committed]). The police saw that, in order to complete the sale, defendant retreated into a building where he lingered for up to three minutes, which suggested that the narcotics defendant then produced outside the bodega were concealed in a place that was not readily accessible. The primary officer also testified that, in his experience (which involved over 1,000 drug arrests), a “good majority” of the persons arrested for narcotic offenses within a four-block radius of where defendant made his sale were found to have drugs hidden between their buttocks.

Considering all of these circumstances, in conjunction with the fact that the police found no drugs in defendant’s possession after his arrest or the strip search, the police at that point had reasonable suspicion to believe that defendant had narcotics hidden inside his body. Furthermore, the primary officer participated in the visual cavity inspection, thereby establishing that the officers who conducted the inspection had sufficient information to support the reasonable suspicion that defendant had drugs concealed in his body. Finally, the inspection was reasonable in scope and manner because it was conducted privately in a cell, without undue force and by officers of the same gender as defendant. Thus, the police conduct in this case supports the Appellate Division’s conclusion that the proper constitutional standard for a legal visual body inspection was satisfied.

Once the officers saw the string-like object suspiciously hanging from defendant’s rectum, their reasonable suspicion was elevated to probable cause to believe that contraband was concealed in defendant’s body. Yet in More, we stated that probable cause alone was not enough to permit the removal of an object protruding from an arrestee’s rectum. Instead, we stressed that Schmerber requires the police to obtain a warrant authorizing the removal of the plastic bag in the absence of exigent circumstances justifying an immediate seizure of the item. The suppression record in this case provides no basis for a finding of exigent circumstances since the police officers who testified at the hearing indicated that the purpose of the search was to secure evidence and there was no testimony that the drugs were in imminent danger of being destroyed, disseminated or lost, or that defendant was in medical distress. Thus, when the police physically removed the object that was attached to the string without first obtaining a warrant, they conducted an unreasonable manual body cavity search in violation of the Fourth Amendment. Under these circumstances, More mandates that the recovered drugs be suppressed.

Accordingly, the order of the Appellate Division should be reversed, defendant’s motion to suppress granted to the extent of suppressing the drugs recovered and the indictment dismissed.

Ciparick, J. (concurring).

I agree with the Court’s conclusion that the manual body cavity search at issue here is unconstitutional under People v More (97 NY2d 209 [2002]) and Schmerber v California (384 US 757 [1966]). As a result, the majority correctly concludes that the cocaine that the police forcibly removed from defendant’s rectum must be suppressed. I also agree that the reasonable suspicion standard should govern strip searches conducted to disarm suspects and to prevent the destruction or concealment of contraband. I cannot, however, join the majority in holding that visual body cavity searches incident to arrest constitute an exception to the warrant requirement of the Federal and State Search and Seizure Clauses. Rather I would hold that, just like a manual body cavity search, this intrusive, degrading, and humiliating species of search may only be conducted upon a neutral and detached magistrate’s issuance of a warrant based upon probable cause or upon satisfaction of Schmerber’s clear indication test.

The rule announced in Schmerber is unequivocal. The search incident to arrest exception to the warrant requirement does not apply to “searches involving intrusions beyond the body’s surface” (Schmerber, 384 US at 769). Rather, to safeguard the interests in the “human dignity and privacy” that the Search and Seizure Clauses were designed to protect, an intrusion extending beyond the body’s surface may not be undertaken on the “mere chance that desired evidence might be obtained” (id. at 770). It must, instead, be authorized by a warrant issued by a neutral and detached magistrate because “[t]he importance of informed, detached and deliberate determinations of the issue whether or not to invade another’s body in search of evidence of guilt is indisputable and great” (id.). Indeed, the Court reasoned that “[sjearch warrants are ordinarily required for searches of dwellings, and absent an emergency, no less could be required where intrusions into the human body are concerned” (id.).

Nonetheless, Sehmerber does not require a warrant for all bodily intrusions. An exception to its rule is permitted if three demonstrable facts are established: a “clear indication” that relevant evidence will be found in the bodily area to be searched, an “emergency” situation in which there was “no time” to secure a magistrate’s warrant and any delay threatened the imminent destruction of relevant evidence and performance of the search in a “reasonable manner” (Sehmerber, 384 US at 770, 771). We adopted the Sehmerber test in More to govern “body cavity searches incident to . . . arrest” (More, 97 NY2d at 213). Because we did not distinguish between visual and manual body cavity searches in that case, we are now required to determine whether Sehmerber should apply to both categories of body cavity searches.

The majority holds that visual body cavity searches are exempt from Sehmerber's rule and are subject to the reasonable suspicion standard because it is “reasonable” to distinguish such searches from manual body cavity searches (see majority op at 308-309). This is so, says the majority, because a visual body cavity search “do[es] not create a risk of physical pain or injury” and is therefore somehow less intrusive than “a physical search of an arrestee’s body cavity” (see majority op at 309, 310). But, even assuming that that assertion is correct, it is still true that eyes—as well as fingers and tools—can intrude unreasonably upon constitutionally protected privacy rights (see Kamins, New York Search and Seizure § 4.01 [1], at 4-3 [2007 ed] [“Whenever it is determined that an area is one in which an individual has a reasonable expectation of privacy, the invasion of that privacy constitutes a search within the meaning of the Fourth Amendment ... A search can take a variety of forms (including) . . . a visual inspection”]).

When a law enforcement official peers into the rectum of an arrestee to search for contraband, that visual inspection is clearly an intrusion into the body (see Fuller v M.G. Jewelry, 950 F2d 1437, 1449 [9th Cir 1991] [“Schmerber governs all searches that invade the interior of the body—whether by a needle that punctures the skin or a visual intrusion into a body cavity”]). The fact that “no touching” (see majority op at 308) occurs is immaterial because the search represents a drastic affront to human dignity and privacy, the very fundamental constitutional interests that Schmerber’s rule was designed to protect (see 950 F2d at 1449 [“ ‘The interests in human dignity and privacy’ invaded when a public official peers inside a person’s body cavity are at least as great as those invaded by a needle piercing the skin. Therefore, a body cavity inspection cannot be justified by a lesser standard than that applied in Schmerber for a blood test”]; cf. United States v Oyekan, 786 F2d 832, 839 n 13 [8th Cir 1986] [“We believe a body cavity search must be conducted consistently with the Schmerber factors, even though such a search does not technically require piercing the skin, because both the degree and kind of intrusion involved are of analogous proportions”]).

Indeed, it is indisputable that visual body cavity searches are degrading, humiliating, and frightening (see Campbell v Miller, 499 F3d 711, 718 [7th Cir 2007], quoting Mary Beth G. v City of Chicago, 723 F2d 1263, 1272 [7th Cir 1983] [“strip searches involving the visual inspection of the anal (and genital) area(s) are ‘demeaning, dehumanizing, undignified, humiliating, terrifying, unpleasant, embarrassing, repulsive, (and) signify( ) degradation and submission’ ”]; State v Clark, 65 Haw 488, 497, 654 P2d 355, 362 [1982] [“It is humiliating and degrading to be forced to totally expose one’s self to a total and hostile stranger”]; Bell v Wolfish, 441 US 520, 576-577 [1979, Marshall, J., dissenting] [visual body cavity searches “represent one of the most grievous offenses against personal dignity and common decency”]; accord More, 97 NY2d at 213 [body cavity searches incident to arrest are “invasive” and “degrading”]). Logically then—because we adopted the Schmerber test in More—our state’s citizens should be entitled to as much protection from warrantless visual body cavity searches as they are from a common blood drawing procedure that “involves virtually no risk, trauma, or pain” (see Schmerber, 384 US at 771).

I concede that the majority’s position is bolstered by the holdings of many federal circuit courts that have applied Bell v Wolfish (441 US 520 [1979]) to permit visual body cavity searches pursuant to a reasonable suspicion standard (see majority op at 308-309). But it is notable that the main factor motivating several of those courts to adopt the Wolfish test— the need to maintain institutional security—is wholly lacking support on this record (see Swain v Spinney, 117 F3d 1, 8 [1st Cir 1997] [“(T)he most compelling justification for warrantless strip and visual body cavity searches is institutional security”]; see also Mary Beth G., 723 F2d at 1273; Blackburn v Snow, 771 F2d 556, 564 [1st Cir 1985]). And, as the majority acknowledges, the U.S. Supreme Court has reserved on the issue of whether the Fourth Amendment permits warrantless strip searches performed incident to arrest (see Illinois v Lafayette, 462 US 640, 646 n 2 [1983]).

The Ninth Circuit has concluded that visual body cavity searches of arrestees are subject to Schmerber (see Fuller, 950 F2d at 1449). The courts in at least one other state agree (see Hughes v Commonwealth, 31 Va App 447, 460, 524 SE2d 155, 162 [2000] [“Probable cause to believe a suspect possesses drugs, which justifies a search of an individual, does not justify a strip or body cavity search unless the evidence or circumstances specifically provides the officers with a ‘clear indication’ that the contraband is concealed in a body cavity”]; cf. Moss v Commonwealth, 30 Va App 219, 224-226, 516 SE2d 246, 249-250 [1999] [applying Schmerber test to strip search]). Thus, the judicial consensus on the propriety of visual body cavity searches is far from settled (see 3 LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 5.3 [c], at 167 [4th ed] [“(T)here is still a need to scrutinize closely those searches incident to arrest which involve inspections of or intrusions into the body”]).

In any event, Wolfish should not govern visual body cavity searches incident to arrest (see Fuller, 950 F2d at 1448 [absent record evidence that arrestees “ever intermingled with the general jail population . . . the rationale underlying Wolfish . . .— which only allows strip searches of detainees with less than probable cause where the objective is to discover weapons or contraband—does not apply to the instant case”]; see also Commonwealth v Gilmore, 27 Va App 320, 330 n 5, 498 SE2d 464, 469 n 5 [1998] [“The analytical framework set forth in Wolfish is inapplicable . . . Because a person who is searched incident to arrest is not yet incarcerated, he or she has greater constitutional protection than a pretrial detainee. As such, this case is controlled by the principles set forth in Schmerber”]). Wolfish did not overrule Schmerber. Instead it recognized that the Fourth Amendment standard of reasonableness is a flexible one that requires “balancing . . . the need for the particular search against the invasion of personal rights that the search entails. Courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted” (Wolfish, 441 US at 559).

I respectfully submit that—in the context of visual body cavity searches incident to arrest—the proper balance of constitutional interests has already been struck—in Schmerber (see Fuller, 950 F2d at 1448; Hughes, 31 Va App at 460, 524 SE2d at 162; Gilmore, 27 Va App at 330 n 5, 498 SE2d at 469 n 5). In Wolfish, there was a reason to tip the scales towards the government, namely record evidence that the federal pretrial detention facility at issue there was a “unique place fraught with serious security dangers,” where “[s]muggling of money, drugs, weapons, and other contraband is all too common an occurrence” (441 US at 559). As the majority admits, however, the record before us contains no evidence of parallel security concerns plaguing the 26th Precinct station house (see majority op at 309). Instead, the record demonstrates that: at least 12 holding cells, some of which were located 20 feet from the station house desk, were available for searching arrestees, another 14 detention cells were available for “overnight lodging,” and that defendant’s cohort was searched in a cell separate from him. Thus, the Appellate Division’s reliance upon Wolfish is misplaced.

Moreover, the balance struck in Wolfish was predicated on the assumption that “convicted prisoners” and “pretrial detainees” merely retained “some” Fourth Amendment rights upon their commitment (see 441 US at 558). Here, in contrast, we deal with an arrestee, who at the time of the search had not yet even been arraigned and who was therefore entitled—at the very least—to enjoy greater constitutional protection than a pretrial detainee, who was remanded to supervision following arraignment, or a convicted prisoner (Gilmore, 27 Va App at 330 n 5, 498 SE2d at 469 n 5; cf. Block v Rutherford, 468 US 576, 583 [1984] [“The very fact of nonrelease pending trial ... is a significant factor bearing on the security measures that are imperative to the proper administration of a detention facility”]; People ex rel. Maxian v Brown, 77 NY2d 422, 427 [1991] [noting that “the deprivation entailed by prearraignment detention is very great (and is) . . . one as to which no predicate is established in advance and, indeed, which may ultimately be found to have been unwarranted” (internal quotation marks omitted)]; State v Bayaoa, 66 Haw 21, 25 n 2, 656 P2d 1330, 1332 n 2 [1982] [“at least with regard to the fourth amendment, the rights of persons not yet convicted of crimes must be more closely scrutinized than the rights of prisoners”]).

Application of the reasonable suspicion standard in this case is also particularly inappropriate because we have stated that that standard applies to searches that are “uniquely discriminate” and “nonintrusive” (see e.g. People v Dunn, 77 NY2d 19, 26 [1990] [canine sniff search of apartment hallway subject to reasonable suspicion standard because “(i)t does not entail entry into the premises or exposure of one’s personal effects to the police”]; see also People v Cantor, 36 NY2d 106, 112-113 [1975] [reasonable suspicion standard applies to authority of police officers to stop and inquire of citizens in public place]). And the U.S. Supreme Court has applied the standard to the detention of suspected smugglers at national borders, where the interests of the individual are greatly outweighed by those of the government (United States v Montoya de Hernandez, 473 US 531, 541-542 [1985]). Even in that context, however, the Court made clear that “[t]he ‘reasonable suspicion’ standard” is intended to “effectt ] a needed balance between private and public interests when law enforcement officials must make a limited intrusion on less than probable cause” (id. at 541). A visual body cavity search, however, cannot be characterized as a “limited intrusion.”

Nor can visual body cavity searches be justified under our precedents recognizing an officer’s right to conduct a limited search incident to arrest. Such a search is constitutionally permissible based upon two exigent circumstances: the need to protect the safety of the arresting officer and the need to prevent the destruction of evidence (see People v Evans, 43 NY2d 160, 165 [1977]; Chimel v California, 395 US 752, 763 [1969]). We have explained that such searches are permitted because they represent de minimis intrusions when compared with the loss of liberty occasioned by the arrest that preceded them (see People v De Santis, 46 NY2d 82, 87 [1978], overruled on other grounds by People v Belton, 55 NY2d 49 [1982]; cf. People v Perel, 34 NY2d 462, 467 [1974] [explaining, in context of inventory search, that “(g)iven the nature of the gross intrusion by detention of the person it is reasonable to conduct a less intrusive search of his person and the possessions he carried with him”]). Thus, a warrantless search is not justified when “the intrusion required for [it] is of a greater magnitude than the gross personal intrusion of the arrest and the personal search incident to it” (see Perel, 34 NY2d at 468). Here, the visual body cavity search was unjustified because the inspection of defendant’s highly private and intimate areas greatly exceeded the magnitude of the intrusion occasioned by his arrest and the pat-down search incident to it.

Most importantly, given “our strong preference for search warrants” (see People v Hanlon, 36 NY2d 549, 558 [1975]), we must identify reasons for dispensing with the warrant requirement in particular cases (see Brigham City, Utah v Stuart, 547 US 398, 403 [2006], quoting Mincey v Arizona, 437 US 385, 393-394 [1978] [“(W)arrants are generally required to search a person’s home or his person unless ‘the exigencies of the situation’ make the needs of law enforcement so compelling that the warrantless search is objectively reasonable under the Fourth Amendment”]). Critically, the ease of obtaining evidence of criminal conduct is not a relevant consideration in this inquiry (see Mincey, 437 US at 393 [“(T)he mere fact that law enforcement may be made more efficient can never by itself justify disregard of the Fourth Amendment. The investigation of crime would always be simplified if warrants were unnecessary” (citation omitted)]; see also Schmerber, 384 US at 770 [“In the absence of a clear indication that in fact such evidence will be found . . . fundamental human interests require law officers to suffer the risk that such evidence may disappear unless there is an immediate search”]; cf. People v Gokey, 60 NY2d 309, 312, 313 [1983] [lack of “exigent circumstances” rendered search of bag impermissible where defendant was handcuffed and “(t)he police officers’ interest in the bag focused solely on the possibility that it contained marihuana”]). Exigencies threatening officer safety or the imminent destruction of evidence are valid justifications for dispensing with the warrant requirement (see e.g. Evans, 43 NY2d at 165). But once an arrest has occurred, these important factors lose much of their force (see e.g. Gokey, 60 NY2d at 313-314 [warrantless search impermissible where defendant was handcuffed and surrounded by officers because the “police . . . did not fear for their safety, and because they could not have reasonably believed that the search of the bag was necessary to preserve any evidence”]).

Therefore, in the context of a station house visual body cavity search, where an arrestee can be segregated, monitored and secured pending the issuance of a warrant and there is no record evidence of any exigency threatening safety and security or the imminent destruction of evidence, the police must obtain a warrant or proceed under Schmerber’s clear indication test (see Clark, 65 Haw at 497, 654 P2d at 362, citing Fontenot, 383 So 2d at 367 [“(T)he police could have detained and watched defendant . . . so as to prevent destruction of evidence during the short delay caused by getting a warrant. This burden on the police does not raise this situation to the level of an emergency”]). Any exception to this rule would authorize warrantless visual body cavity searches solely to secure evidence of criminality. That should not be permitted.

The probable cause standard could be met in many cases where visual body cavity searches would aid law enforcement (see CPL 70.10 [2]). Like the reasonable suspicion standard, its contours are equally clear: “the information [contained in the warrant application] must be sufficient to warrant a person of reasonable caution in the belief that . . . evidence of a crime w[ill] be found in a particular place” (People v P.J. Video, 68 NY2d 296, 300 [1986]). In evaluating the warrant application, the magistrate must consider “all aspects of the information supporting [it],” including “the experience and expertise of the officers involved” and “the nature of the crime and the exigencies, if any, involved” (see id. at 306 [emphasis omitted]). Under this standard, a magistrate could certainly approve a visual body cavity search of a narcotics arrestee.

Indeed, several facts could support a proper warrant application, including officers witnessing a defendant secrete narcotics, suspicious movements consistent with storage of a foreign substance in a body cavity, defendants’ admissions, and reliable information obtained from police sources (see People v Jones, 3 Misc 3d 481, 482 n 2, 485-486 [Sup Ct, Bronx County 2004] [police had “probable cause” where observing officer witnessed arrestee “put the drugs down the back of his pants”]; People v Perry, 6 Misc 3d 1028[A], 2005 NY Slip Op 50219[U], *5 n 5, *4-5 [Sup Ct, Queens County 2005] [police had “clear indication” that arrestee had secreted drugs in rectum where, after being segregated in a cell pending issuance of warrant, he behaved erratically “and was observed wiggling his body . . . (and) reaching into the back of his pants and putting his hand to his mouth”]; cf. People v Kelley, 306 AD2d 699, 700 [3d Dept 2003] [factors that courts consider to determine reasonableness of strip searches include “defendant’s excessive nervousness, unusual conduct, information showing pertinent criminal propensities, informant’s tips, loose-fitting or bulky clothing, an itinerary suggestive of wrongdoing, incriminating matter discovered during a less intrusive search, lack of employment, indications of drug addiction, information derived from others arrested or searched contemporaneously, and evasive or contradictory answers to questions”]).

In any event, had the police monitored defendant in a holding cell, additional facts may have come to light that could have permitted a visual body cavity search under the Schmerber test (see Perry, 2005 NY Slip Op 50219[U] at *2 [after police attempted to obtain warrant, exigent circumstances arose when they observed defendant put “his hand down the rear of his underwear in the area of his anus” and then begin to eat something]; cf. People v Barnville, 31 AD3d 271, 272-273 [1st Dept 2006] [because of “the trained, experienced officer’s observation of defendant, at a notorious drug location, retrieving an item from his buttocks area and exchanging it for money from a person found in possession of drugs minutes later, the fruitless search of defendant’s outer garments, and the knowledge that drug dealers often store drugs within their buttocks or rectum—there was sufficient evidence to support not only probable cause to arrest for a drug sale, but an objective, particularized, reasonable belief that defendant was secreting contraband in the area of his buttocks”]).

That there are any number of factual situations in which probable cause to conduct a visual body cavity search could be satisfied underscores the fact that “[i]n dealing with probable cause ... we deal with probabilities” (see Brinegar v United States, 338 US 160, 175 [1949]). But when the assessment of those probabilities can lead to an intrusion upon human dignity and privacy as grievous and degrading as a visual body cavity search, then such assessment—absent exigent circumstances not present here—should be made by a neutral and detached magistrate (see Hanlon, 36 NY2d at 558 [warrant requirement “is designed to interpose the detached and independent judgment of a neutral Magistrate between the interested viewpoint of those engaged in ferreting out crime and the potential encroachments on the sanctity and privacy of the individual”]).

In conclusion, I concur in the result that the majority reaches today, but I cannot join in the full breadth of its reasoning. The fundamental constitutional interests of human dignity and bodily integrity are not only implicated when intimate bodily areas are touched. A visual intrusion into a body cavity is an “intrusion beyond the body’s surface” and thus, the Schmerber test must apply to such searches as well as manual body cavity searches. I would therefore grant defendant’s motion to suppress the drugs and dismiss the indictment.

Smith, J. (dissenting in part).

I agree that, for the reasons explained in Judge Graffeo’s opinion, the visual search did not violate defendant’s constitutional rights. I think the seizure of the contraband was lawful also, and therefore I would deny the motion to suppress.

The visual search, which we today hold valid, led officers Burnes and Spiegel to observe a string hanging from defendant’s rectum. The record shows that Burnes twice ordered defendant to remove the string, and warned him that if defendant did not do so, Burnes would do it himself. Defendant remained motionless. Burnes and Spiegel then held defendant’s arms and forced him into a bent position. Burnes pulled the string, and a plastic bag containing rocks of crack cocaine came out “easily.” There is no evidence that either officer put a hand or implement in defendant’s body, or even touched him below the waist.

The majority holds that, when defendant refused to cooperate, the officers had to leave the contraband where it was until they got a search warrant. In that situation, getting the warrant seems to me a pointless exercise, and I do not believe the State or Federal Constitution requires it.

The general rule, of course, is that a person arrested can be searched without a warrant. In Schmerber v California (384 US 757 [1966]), the Supreme Court established an exception for searches that intrude into the human body. “Search warrants,” the Court said in Schmerber, “are ordinarily required for searches of dwellings, and absent an emergency, no less could be required where intrusions into the human body are concerned” (384 US at 770). I find Schmerber inapplicable here, for the simple reason that no one intruded into defendant’s body. There is no evidence that any hand or implement was inserted, or that the officers’ actions had any significant internal effect on defendant. All Burnes did was pull on a plainly visible string, causing the contraband to emerge with no difficulty. There is no claim that this action caused defendant any pain, or put him at risk of injury. The removal of the contraband in this case seems to me a lesser violation of privacy than the lawful search that led to its discovery.

The majority relies on People v More (97 NY2d 209 [2002]) to hold that Schmerber governs this case. It is true that we applied Schmerber in More, and that we held the removal of drugs from defendant in that case unconstitutional, but the facts in More were different from the facts here.

Our statement of the central facts in More is brief: “Defendant initially cooperated by taking off most of his clothes, but at some point he protested and scuffled with the officers. During the search, which took place in a bedroom, the police removed a plastic bag, an outer portion of which they saw protruding from defendant’s rectum” (97 NY2d at 212). Defendant’s brief in our Court, however, was more detailed and less delicate:

“Officer Schoonmaker grabbed Appellant and called for help, claiming that he saw a piece of cellophane protruding from appellant’s anus. Appellant was immediately surrounded by police officers. A struggle ensued as the officers attempted to reach into the appellant’s rectum. Appellant resisted the assault for three or four minutes in spite of the fact that 5 or 6 officers were trying to wrestle him to the ground. Eventually, he was incapacitated by the police. One officer was holding each leg, one officer was lying on top of his head and one officer was holding each of his arms. The defendant was handcuffed. His face was forced into the floor and his buttocks forced up to the ceiling. At this point, as Appellant continued to struggle, an unknown officer called for a flashlight. Another unknown officer came in and shined a flashlight into the rectum of the Appellant. Detective Sergeant Wilson put on a rubber glove and proceeded to enter the rectum of the Appellant. He groped and probed extensively. As it turned out, the baggie that Officer Schoonmaker had earlier testified was protruding from the appellant, was, instead, other officers testified, so far inside the appellant that it was barely visible to the naked eye and was very difficult to remove. So much force was used to accomplish the extraction that the baggie was covered with blood and human tissue.” (Appellant’s brief, People v More, at 5-6 [record references omitted].)

The People’s brief in More did not challenge this summary of the way the evidence was retrieved. In light of that, I find it unsurprising that our opinion in More simply assumes, without discussion, that the search involved an intrusion “beyond the body’s surface” (97 NY2d at 212) and that Schmerber therefore applied. There is another important difference between the More facts and ours: the officers in More did not have reason to suspect, before performing a visual body cavity search, that the defendant was concealing drugs inside his body. He had been arrested when police officers found him sitting near a crack pipe and a small piece of crack cocaine. Our opinion in More seems to reflect the belief—well justified by the record in that case— that even the visual body cavity search was unlawful. Among the authorities we relied on were Mary Beth G. v City of Chicago (723 F2d 1263 [7th Cir 1983]) and Arruda v Fair (710 F2d 886 [1st Cir 1983], cert denied 464 US 999 [1983]), both of which involved only visual searches (see 97 NY2d at 213).

We should not treat More as being conclusive on an issue not presented or discussed in that case: whether, when an object protruding from a body cavity is found during a lawful search, the removal of that object without intrusion into the body requires a warrant under Schmerber. No other New York case decides the question, and decisions from other jurisdictions are of limited help, though several give some indirect support to the People’s position here (see United States v Himmelwright, 551 F2d 991 [5th Cir 1977] [removal during border search not unlawful]; State v Jones, 76 Wash App 592, 887 P2d 461 [1995] [removal not a body cavity search under state statutes]; State v Nieves, 383 Md 573, 586, 861 A2d 62, 70 [2004] [search held unlawful for lack of reasonable suspicion, but court concluded that removal of protruding bags was not “a physical body cavity search”]). In a case almost identical to ours, State v Barnes (215 Ariz 279, 159 P3d 589 [2007]), an intermediate appellate court in Arizona divided 2 to 1 in the defendant’s favor.

I agree with Judge Espinosa, dissenting in Barnes, who said: “It makes little sense ... to require officers to obtain a warrant in cases such as this, where contraband is visible between the cheeks of the buttocks and may be retrieved easily, without harm to the individual” (215 Ariz at 285, 159 P3d at 595). I do not see why it is unreasonable for the officers to take, with minimal force, what they have already lawfully seen (cf. Horton v California, 496 US 128 [1990] [lawful to seize object in plain view]). The majority’s contrary holding will, I fear, add unnecessarily to the many problems faced by police officers trying to make headway against street drug dealers.

Accordingly, I would affirm the order of the Appellate Division.

Chief Judge Kaye concurs with Judge Graffeo; Judge Ciparick concurs in result in a separate opinion in which Judge Jones concurs; Judge Smith dissents and votes to affirm in another opinion in which Judges Read and Pigott concur.

Order reversed, etc.

      . Five members of this Court (Chief Judge Kaye, Judges Read, Smith, Pigott and myself) agree that the reasonable suspicion standard applies to visual body cavity inspections. Four members (Chief Judge Kaye, Judges Ciparick, Jones and myself) conclude that an object protruding from a body cavity cannot be removed without a warrant unless there are exigent circumstances. Judges Ciparick and Jones disagree with the majority on the first issue; Judges Read, Smith and Pigott disagree with the majority on the second issue.

      . See e.g. Paulino v State, 399 Md 341, 352, 924 A2d 308, 315 (2007), cert denied 552 US —, 128 S Ct 709 (2007); Blackburn v Snow, 771 F2d 556, 561 n 3 (1st Cir 1985); McGee v State, 105 SW3d 609, 615 (Tex Ct Crim App 2003); Kamins, New York Search and Seizure § 4.03 (5), at 4-141 (2007).

      . “Clear indication” means “the necessity for particularized suspicion that the evidence sought might he found within the body of the individual”; it is not “a third Fourth Amendment threshold between ‘reasonable suspicion’ and ‘probable cause’ ” (United States v Montoya de Hernandez, 473 US 531, 540 [1985]). Because Schmerber mandates a warrant in the absence of exigent circumstances, the clear indication test requires that searches beyond the surface of a person’s body be supported by at least probable cause.

      . The Court concluded that an emergency existed because the percentage of alcohol in the blood begins to diminish shortly after the person stops drinking, which meant that the time expended to secure a warrant would have caused relevant evidence to degrade or disappear (see Schmerber, 384 US at 770-771).

      . The concurrence further reasons that visual body inspections are unnecessary because precincts contain numerous detention and holding cells that can be used to segregate and monitor arrestees pending the issuance of warrants (see concurring op at 317). This is simply not the case throughout our state. In rural locales, there may be a limited number of State Troopers, deputy sheriffs or municipal police officers on duty covering expansive geographical regions—and some towns and villages do not maintain their own police forces. This presents a practical difficulty in keeping an arrestee suspected of having drugs hidden in his body segregated from other arrestees and under constant surveillance. We should not adopt a rule that conditions the constitutionality of a visual inspection on the relative availability of law enforcement resources.

      . The lurid facts described by the defendant in his brief in More, and quoted at length in the dissent (see dissenting op at 323-324), are simply not those found by the suppression court, affirmed by the Appellate Division and relied on by this Court in its decision. In that case, as this Court noted, an outer portion of the plastic bag containing cocaine was protruding from the defendant’s rectum, yet the description illustrates the perils of attempting to remove even a protruding article from an arrestee’s body cavity.

      . Although we declined in More to discuss the validity of body cavity searches conducted at a police station (see 97 NY2d at 214 n), it is evident that the location of a search is not the determinative factor under Schmerber because that decision prohibits all warrantless intrusions into an arrestee’s body if there is no probable cause and exigent circumstances established, regardless of where the search occurs. Aside from those considerations, the site of a search is relevant only to the reasonableness of the manner in which the search was conducted (i.e., how, where and by whom it was done).

      . We acknowledge that a search other than in a private location is patently unreasonable except in the most extraordinary circumstances (perhaps where necessary to save the life of an arrestee). Thus, in the absence of highly unusual facts, we—like other courts across the nation—would condemn public visual cavity inspections as abusive, shameful and unconstitutional (see e.g. Campbell v Miller, 499 F3d at 719).

      . Of course, even if a warrant is issued, the search must be conducted in a reasonable manner. The majority properly acknowledges that it would require “highly unusual facts” (see majority op at 311 n 8) to justify a public visual body cavity search (see e.g. Paulino v State, 399 Md 341, 360, 924 A2d 308, 319 [2007] [combined strip and visual body cavity search conducted in well-lit parking lot, where car passengers could observe, unconstitutional because it was “unnecessarily within the public view and thus violative of the Fourth Amendment”]; Campbell v Miller, 499 F3d 711, 719 [7th Cir 2007] [“Courts across the country are uniform in their condemnation of intrusive searches performed in public”]; see also People v Mitchell, 2 AD3d 145, 147 [1st Dept 2003] [“The strip search of the defendant, in public view . . . was not reasonable”]).

      . In two cases decided after Wolfish, the courts of last resort in Hawaii and Louisiana held that Schmerber applies to body cavity searches conducted incident to arrest (see State v Clark, 65 Haw 488, 497, 654 P2d 355, 362 [1982]; State v Fontenot, 383 So 2d 365, 367 [La 1980]). Those cases, however, concerned manual body cavity searches and did not express a view on the applicability of Schmerber to visual body cavity searches.

      . Because constitutional search and seizure protections are flexible, I do not foreclose the possibility that a particular station house may experience the same security concerns at issue in Wolfish. If such legitimate concerns caused by, for example, cell overcrowding, were established by record evidence, then those facts could constitute an exigent circumstance under the Schmerber test.


author: Ciparick, J.

text:
    [ 887 NE2d 1121, 858 NYS2d 63]
    Solow Management Corp., Respondent, v Steven Tanger et al., Respondents. Jerome Janof, Nonparty Appellant.
    Argued March 18, 2008;
    decided April 24, 2008

      POINTS OF COUNSEL

      Litwack & Litwack, P.C., Bayside (Kenneth D. Litwack and Maureen A. Gest of counsel), for nonparty appellant.
    I. A marshal may release a judgment debtor’s property, absent a court order, when that property has been secured pending appeal, thereby fully protecting plaintiff. (People v Finnegan, 85 NY2d 53, 968, 516 US 919; People ex rel. Harris v Sullivan, 74 NY2d 305; Doctors Council v New York City Employees’ Retirement Sys., 71 NY2d 669; New York Cas. Co. v Kuhn, 192 Misc 286; Thornton v Montefiore Hosp., 117 AD2d 552; Cruz v Amsterdam Hous. Auth., 174 Misc 2d 189; Gimenez v Great Atl. & Pac. Tea Co., 242 App Div 485; Rivera v W. & R. Serv. Sta., 34 AD2d 115.) II. Debra and Steven Tánger interfered with the Marshal’s collection efforts when they filed a bond pending appeal, obtained a stay of enforcement, and then requested that the Marshal release the property upon which he had already levied. (Thornton v Montefiore Hosp., 117 AD2d 552; Matter of Standardbred Owners Assn. [Yonkers Raceway], 44 Misc 2d 37; Gimenez v Great Atl. & Pac. Tea Co., 242 App Div 485; Rapino v City of New York, 7 Misc 3d 1012[A], 2004 NY Slip Op 51878[U], 299 AD2d 470, 100 NY2d 506; Herbert H. Levess & Co. v Celebrity Knitwear, 130 Misc 2d 1055; Liquifin AG. v Brennan, 446 F Supp 914; Jericho Plumbers Supply Co. v Wandoloski, 14 AD2d 775).

      Rosenberg & Estis, P.C., New York City (Warren A. Estis and Norman Flitt of counsel), for Solow Management Corp., respondent.
    Solow Management Corp. is not obligated to pay poundage under the facts presented here; the only question on this appeal is whether Debra and Steven Tánger are liable for the Marshal’s poundage.

      Brown Law Group, P.C., New York City (Rodney A. Brown and Melissa Alcantara of counsel), for Steven Tanger and another, respondents.
    I. The Appellate Division appropriately found that the Marshal is not entitled to an award of poundage fees. (Alvarez v Brooklyn Hosp.-Caledonian Hosp., 255 AD2d 278; Famous Pizza v Metss Kosher Pizza, 119 AD2d 721; Personeni v Aquino, 6 NY2d 35; Flack v State of New York, 95 NY 461; Southern Indus, v Jeremias, 66 AD2d 178; Wartels v County Asphalt, 69 Misc 2d 979, 41 AD2d 705; Thornton v Montefiore Hosp., 117 AD2d 552; Matter of Standardbred Owners Assn. [Yonkers Raceway], 44 Misc 2d 37; Gimenez v Great Atl. & Pac. Tea Co., 242 App Div 485; Rapino v City of New York, 7 Misc 3d 1012[A], 2004 NY Slip Op 51878[U], 299 AD2d 470, 100 NY2d 506.) II. The argument that Debra and Steven Tánger negotiated a release of the Marshal’s levy is unfounded. III. There is no basis to overturn the Appellate Division’s order based upon the Marshal’s assertions concerning CPLR 5204. (Gimenez v Great Atl. & Pac. Tea Co., 242 App Div 485; Thornton v Montefiore Hosp., 117 AD2d 552; D’Amico v Christie, 71 NY2d 76.) IV. If any party should be ordered to pay the Marshal’s poundage, it should be Solow Management Corp. (Famous Pizza v Metss Kosher Pizza, 119 AD2d 721; Matter of Associated Food Stores v Farmer’s Bazaar of Long Is., 126 Misc 2d 541.)
   OPINION OF THE COURT

Ciparick, J.

We are asked to decide in this appeal whether the posting of an appeal bond by a judgment debtor after a marshal has executed a levy on the judgment debtor’s assets constitutes affirmative interference with a marshal’s collection process, entitling the marshal to poundage fees. We conclude that the posting of an appeal bond by a judgment debtor is not affirmative interference. Since the marshal in this case cannot show his entitlement either under CPLR 8012 or any judicially created exception, he is not entitled to such fees.

Commenced in 1991, this action arises from rent strike litigation involving luxury apartments located in Manhattan. Ultimately the landlord, plaintiff Solow Management Corp., prevailed in this case and obtained final judgments for rent arrears against several tenants. On July 29, 2004, a separate judgment for attorneys’ fees was entered in the amount of $655,241.10, including interest, against tenant defendants Debra Tánger and Steve Tánger. Shortly after the judgment was entered and pending its appeal to the Appellate Division, plaintiff began enforcement proceedings, which included the service of a restraining order upon assets held by Merrill Lynch, Pierce, Fenner & Smith, Incorporated, on behalf of the Tangers.

Solow then requested that a New York City marshal serve an execution upon Merrill Lynch. On August 17, 2004, nonparty New York City Marshal Jerome Janof purportedly served execution upon Merrill Lynch, levying against the Tánger accounts. The next day, August 18, 2004, the Tangers filed an appeal bond with Supreme Court, thereby staying all proceedings to enforce the judgment pursuant to CPLR 5519 (a) (2). No monies were ever collected by the marshal pursuant to the levy, and on June 21, 2005, the Appellate Division reversed Supreme Court’s award of attorneys’ fees to plaintiff. In July 2005, the restraint on the Merrill Lynch accounts was lifted and the marshal released the assets, save $32,916.55, the amount of poundage fees claimed. On September 13, 2005, the marshal moved, pursuant to CPLR 8012, for an order awarding him poundage and statutory fees, settling the amount of the fees, and for a determination of which party or parties should pay the poundage.

Supreme Court held that the marshal was entitled to $32,916.55 in poundage fees and that the Tangers were liable for this amount. Supreme Court further held that the filing of an appeal bond after the marshal had levied upon the Tangers’ assets amounted to affirmative interference with the marshal’s collection efforts. The Appellate Division reversed the award, stating that, in making such award, Supreme Court had “erroneously concluded that defendants had affirmatively interfered with the collection process by obtaining a bond for their appeal of plaintiffs judgment against them” (38 AD3d 49, 50 [2007]). We granted leave to appeal and now affirm.

In determining whether a marshal is entitled to poundage and at what percentage, CPLR 8012 (b) (1) provides that

“A sheriff is entitled, for collecting money by virtue of an execution, an order of attachment, or an attachment for the payment of money in an action, or a warrant for the collection of money issued by the comptroller or by a county treasurer or by any agency of the state or a political subdivision thereof, or for collecting a fine by virtue of a commitment for civil contempt, to poundage of, in the counties within the city of New York, five per cent of the sum collected and in all other counties, five per cent upon the first two hundred fifty thousand dollars collected, and three per cent upon the residue of the sum collected.”

Since the marshal here failed to actually collect any monies pursuant to his levy, in order to be entitled to poundage, he must show facts that fall within one of the two statutory exceptions. The statutory exceptions authorizing poundage despite noncollection of assets apply when: (1) “a settlement is made after a levy by virtue of an execution” or (2) when the “execution is vacated or set aside” (CPLR 8012 [b] [2], [3]). In Personeni v Aquino (6 NY2d 35, 37-38 [1959]), we stated that since “[t]he right of a Sheriff to collect and receive poundage is wholly statutory [and because] . . . [t]he statutory exceptions authorizing poundage for noncollection . . . are in derogation of common law [they therefore] must be strictly construed.”

A third judicially created exception applies when there has been affirmative interference with the collection process, thus preventing a marshal from actually collecting the levied assets through some affirmative action. It is this third narrow exception upon which the marshal here relies, claiming that the judgment debtor, the Tangers, interfered with his collection of monies pursuant to his levy upon the Merrill Lynch accounts by posting an appeal bond.

It is undisputed that the underlying judgment was never collected by the marshal pursuant to his levy; neither has there been a settlement in this case, nor a vacatur or setting aside of the execution. Therefore, in order for the marshal to be entitled to poundage, he must show affirmative interference that prevented him from completing the collection process. In Flack v State of New York (95 NY 461 [1884]), we stated that in order “[t]o bring the claim of a sheriff within the provisions of the statute, it is essential that he [or she] show either the collection of the moneys called for, or some interference by the plaintiff [judgment creditor] with his execution of the process that is equivalent thereto” (id. at 466). Here, it cannot be said that the Tangers, as judgment debtors, affirmatively interfered with the marshal’s collection process merely by availing themselves of the right to appeal and by the posting of an appeal bond. While there exists some Appellate Division authority establishing that a judgment debtor can also be found liable for poundage fees based upon affirmative interference, we need not reach that issue here. We merely hold that the posting of an appeal bond by a judgment debtor cannot constitute affirmative interference with a marshal’s collection process.

We agree with the Appellate Division that the filing of an appeal bond pursuant to CPLR 5519 did not require vacatur of the marshal’s levy but only requires that all enforcement actions be temporarily stayed until there has been a determination as to the merits of the appeal. Indeed, if the Tangers lost their appeal, the marshal’s levy would still be intact and he would be free to complete the collection process. To hold otherwise would discourage litigants from seeking further judicial review lest they be charged with poundage fees.

While we agree that the marshal is not entitled to poundage fees, we disagree with the Appellate Division’s conclusion that the marshal could protect his right to poundage only by insisting upon an application to the court for release of the levied funds pursuant to CPLR 5204. CPLR 5204 states that

“Upon motion of the judgment debtor, upon notice to the judgment creditor, the sheriff and the sureties upon the undertaking, the court may order, upon such terms as justice requires, that the lien of a money judgment, or that a levy made pursuant to an execution issued upon a money judgment, be released as to all or specified real or personal property upon the ground that the judgment debtor has given an undertaking upon appeal sufficient to secure the judgment creditor.”

Certainly a stipulation, signed by both parties and the marshal, to vacate the levy could have protected the marshal’s rights. Then CPLR 8012 (b) (2), providing for poundage “[w]here an execution is vacated or set aside,” would apply. But here, the marshal could not gain the benefit of the statute by unilaterally releasing the assets without notifying his principal, Solow. Indeed if Solow refused to agree to release the levied assets, then the Tangers would have been free to seek such release pursuant to CPLR 5204.

Accordingly, the order of the Appellate Division should be affirmed, with costs.

Chief Judge Kaye and Judges Graffeo, Read, Smith, Pigott and Jones concur.

Order affirmed, with costs.

      . The appeal bond, dated August 13, 2004, was issued by Fidelity and Deposit Company of Maryland.

      . Statutory poundage fees are based on 5% of all monies collected (see CPLR 8012 [b] [1]).

      . Pursuant to article 16 of the New York City Civil Court Act, marshals are officers of the Civil Court of New York City. Collection duties ordinarily performed by a sheriff are performed by a New York City marshal and “[t]he authority of a marshal extends throughout the city of New York and all provisions of law relating to the powers, duties and liabilities of sheriffs in like cases and in respect to the taking and restitution of property” (see NY City Civ Ct Act § 1609 [1] [a]).

      . See Campbell v Cothran, 56 NY 279, 285 (1874) (“The authorities establish that a sheriff who has completed the service of an execution, is entitled to poundage, although the judgment and process be afterward set aside; and also when he has been prevented from fully executing the writ by the act or interference of the plaintiff [judgment creditor]”).

      . See Martin v Consolidated Edison Co. of N.Y., 177 AD2d 548 (2d Dept 1991) (judgment debtor); Thornton v Montefiore Hosp., 117 AD2d 552 (1st Dept 1986) (judgment debtor); Famous Pizza v Metss Kosher Pizza, 119 AD2d 721, 721 (2d Dept 1986) (judgment creditor); Southern Indus, v Jeremias, 66 AD2d 178, 186 (2d Dept 1978) (judgment creditor).