What’s in a swab? When it comes to the law of search incident to arrest, the answer to that question turns out to be significant. In R. v. Saeed, the police took a swab of the suspect’s penis, purportedly incident to arrest, in order to link him to a sexual assault that had just taken place. Faced with the question of whether this was a permissible extension of that common law search power, the Court focussed primarily on the privacy interest in the information contained in the swab, rather than on the privacy interest engaged by the intimate nature of the area being searched. Because the information sought related to the complainant rather than the accused, the warrantless search was deemed permissible notwithstanding its intrusiveness.
"R. v. Saeed: Penile Privacy and Penal Policy."
The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference
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