Pubdate: Tue, 25 May 2004
Source: Boston Globe (MA)
Copyright: 2004 Globe Newspaper Company
Contact:  http://www.boston.com/globe/
Details: http://www.mapinc.org/media/52
Author: Charlie Savage

HIGH COURT ALLOWS CAR SEARCH

Second Case Backs Death-Row Inmate On Penalty Method

WASHINGTON -- A police officer who apprehends a suspect just outside
the suspect's car can search that vehicle without first obtaining a
warrant, and a condemned man with inaccessible veins can challenge on
civil rights grounds a procedure to carry out a lethal injection by
cutting deeply into his flesh, the Supreme Court decided yesterday.

Taken together, the two opinions represented a thematic split in
matters of crime and punishment: They expanded the power of the police
in one case, but expanded the rights of death row prisoners in the
other.

Bill Stuntz, a criminal law professor at Harvard Law School,
characterized both expansions as modest and in line with the current
court's centrist and incremental approach to criminal justice, an area
of law in which the court's decision-making contrasts with its popular
image as being sharply divided along ideological lines.

''This is a very middle-of-the-road court in criminal cases, and these
are very middle-of-the-road decisions," he said. ''One of the
interesting things in cases like these is that . . . the general
impression of this court is that it's not very moderate all, that it's
very ideological. But that's not true at all when it comes to crime.
There are areas in which the court behaves that way, but not here."

The court voted 7 to 2 to expand the power of police to search a
parked car without a warrant when a recent occupant has just left the
vehicle and been arrested nearby.

Marcus Thornton had aroused the suspicion of a Norfolk, Va., police
officer who discovered that Morton's license plates belonged to a
different car. Before the officer had a chance to pull him over,
Thornton parked the car and got out. The officer found crack cocaine
in Thornton's pocket and arrested him, then searched his car and found
a handgun under the seat.

The court had previously ruled that police can search a car in cases
in which police order a suspect out of the vehicle and then make an
arrest. Thornton argued that because he left the car before the
officer made contact with him, police could not look in it without a
warrant, under the Fourth Amendment prohibition of unreasonable searches.

Thornton asked the court to throw out two convictions for crimes
connected to the gun. But the court, affirming lower-court rulings,
chose to expand its permission for police to search recently occupied
cars.

''In all relevant aspects, the arrest of a suspect who is next to a
vehicle presents identical concerns regarding officer safety and the
destruction of evidence as the arrest of one who is inside the
vehicle," the court said in an unsigned opinion.

Justice John Paul Stevens, joined by Justice David Souter, dissented,
arguing that the goal of ''uncovering potentially valuable evidence"
must give way to an individual citizen's right to privacy in such cases.

In the death row case, the court's decision to side with the inmate
was unanimous.

David Nelson was condemned in 1979 for a homicide in Alabama, which
recently switched its means of execution from the electric chair to
lethal injection. Years of drug abuse left Nelson's surface veins too
damaged for needle access, so the state planned to reach usable veins
by cutting 2 inches into his leg or arm, using only local anesthesia.

Filings by physicians said the procedure was unnecessarily dangerous
and antiquated and could cause Nelson to hemorrhage and suffer before
he died. Nelson challenged the plan as a violation of his civil
rights, namely, the Eighth Amendment's prohibition of cruel and
unusual punishment.

Both the district and appeals courts dismissed the case, because
Nelson had already exhausted his death penalty appeals under a 1996
law that limits the right of condemned inmates to keep raising new
issues. Alabama argued that allowing his complaint would be a
''functional equivalent" of a second appeal and would ''open the
floodgates" to a new round of challenges.

But the Supreme Court, which granted a stay last October three hours
before the execution was to be carried out, ruled that he could bring
the case.

Because the state conceded that the federal civil rights law would be
appropriate for use by an inmate facing the same procedure for the
purpose of providing medical treatment, Justice Sandra Day O'Connor
wrote for the court, ''We see no reason on the face of the complaint
to treat petitioner's claim differently solely because he has been
condemned to die."
- ---
MAP posted-by: Larry Seguin