In his motion to suppress the drugs seized from his person, defendant focused his challenge on the legality of his arrest and the strip search incident thereto. He claimed that the arrest was effected without probable cause, presumably as a pretext to justify the search of his person. In addition, he specifically averred that the body cavity search was "illegal and effected in the absence of probable cause, in the absence of a warrant and in the absence of any exigency." County Court denied the motion to suppress in all respects. On appeal from the judgment of conviction, the Appellate Division affirmed (283 2 715 [3d Dept 2001]). A Judge of this Court granted defendant leave to appeal, and we now reverse.

The uncontested facts are that after defendant was stripped, the police seized evidence secreted in his rectum. The Supreme Court of the United States addressed the constitutionality of a seizure involving an intrusion into the human body in Schmerber v California (384 US 757 1966]). Recognizing that it was "writ[ing] on a clean slate," the Court held that the police were justified in requiring a person arrested for driving while under the influence of alcohol to submit to a blood test to determine blood alcohol level (id., at 768). The Court framed the relevant issues as "whether the police were justified in requiring petitioner to submit to the blood test, and whether the means and procedures employed in taking his blood respected relevant Fourth Amendment standards of reasonableness" (id.).

After concluding that the police had probable cause to arrest the petitioner for driving while under the influence of alcohol, the Supreme Court determined that seizures involving intrusions beyond the body's surface cannot be justified simply because they are made incident to a lawful arrest. The Court reasoned that although a "full search" of a person is allowed incident to a lawful arrest in order to disarm the suspect or preserve evidence (see, United States v Robinson, 414 US 218, 234-235 [1973]), the considerations permitting such a search "have little applicability with respect to searches involving intrusions beyond the body's surface" (Schmerber v California, 384 US, at 769, supra). The Fourth Amendment "forbid[s] any such intrusions on the mere chance that desired evidence might be obtained" (id., at 770). Rather, there must exist a "clear indication" that desired evidence will be found. In the absence of such an indication, the Fourth Amendment mandates that the police "suffer the risk that such evidence may disappear unless there is an immediate search" (id.).

Moreover, even where there is a "clear indication" that incriminating evidence will be retrieved if the bodily intrusion is permitted, "[s]earch 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. [emphasis supplied]). Indeed, as the Court stressed, the "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.). The police were not required to obtain a search warrant in Schmerber only because of the existence of exigent circumstances -- the officer there "might reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened 'the destruction of the evidence'" (id. [quoting, Preston v United States, 376 US 364 (1964)]).

Finally, the Schmerber Court concluded that the procedure used to extract the blood from the petitioner was itself reasonable and conducted in a reasonable manner (id., at 771-772). In upholding the seizure, the Court noted that its decision to allow the intrusion into the petitioner's body "under stringently limited conditions" did not indicate that the Fourth Amendment "permits more substantial intrusions, or intrusions under other conditions" (id., at 772).

Undoubtedly, body cavity searches incident to an arrest are at least as intrusive as blood test procedures. This Court has referred to them as "invasive" and "degrading" (People v Luna, , 73 NY2d 173, 178 [1989]), and other courts have similarly described them (see, Mary Beth G. v City of Chicago, 723 F2d 1263, 1272 [7th Cir 1983]; see also, Arruda v Fair, 710 F2d 886, 887 [1st Cir], cert denied 464 US 999 [1983]).