Brezack appealed from a conviction of assaulting a police officer engaged in the lawful execution of his duty. The officer in question had reason to believe that Brezack was committing or about to commit a breach of the Drug Act (now the Controlled Drugs and Substances Act) After observing persons known to be drug addicts going in the direction of the Golden Grill after Brezack, the officers arrested Brezack and searched his mouth due to information they had which said the drugs would be found concealed there. Each time the officer tried to search his mouth Brezack bit the officer's fingers. No drugs were found on Brezack's person, however they were found in his car.
- Was the officer engaged in the lawful execution of his duty as a police officer making an arrest, and believing the information he had, was he entitled to search the appellant's mouth for evidence of the offence of which he believed the appellant to be guilty?
Robertson, writing for the court, held that the common law power of police to search incident to arrest is sufficiently broad that it was not breached in this instance. While Brezack did not have any drugs on his person when search, the officer had good reason to think that he would. The officer has a duty to secure any narcotics both to secure evidence against the accused, and to prevent him from the commission of another crime in disposing of the evidence. As long as the measures taken are reasonable in light of the circumstances, then the search is lawful.
The power to search incident to arrest is broad, though in the post-Charter era there are more limits on the actions of peace officers.