N.M. R. Crim. P. Dist. Ct. 5-301
N.M. R. Crim. P. Dist. Ct. 5-301
Committee commentary. - Paragraphs A through C of this Rule address probable cause for pretrial detention under the Fourth Amendment to the United States Constitution, rather than probable cause for prosecution under Article II, Section 14 of the New Mexico Constitution. This rule will govern those cases in which all of the magistrate or metropolitan court judges are unavailable for probable cause determinations or for first appearance proceedings. If a magistrate or metropolitan judge is not available, a district court judge will make probable cause determinations for all persons arrested for felonies or misdemeanors. Since most persons accused of a crime will be taken before a magistrate or metropolitan court for the initial appearance, Rules 6-203 and 7-203 NMRA govern probable cause determinations in the courts of limited jurisdiction.
Under the Fourth Amendment to the United States Constitution, an accused who is detained and unable to meet conditions of release has a right to a probable cause determination. See Gerstein v. Pugh, 420 U.S. 103 (1975); Cnty. of Riverside v. McLaughlin, 500 U.S. 44 (1991); see also Rule 5-210 NMRA and committee commentary. In Gerstein, the Supreme Court explained that when a suspect is arrested and detained without a warrant, there must be a judicial determination of probable cause by a neutral and detached magistrate "promptly after arrest." 420 U.S. at 125. In Riverside, the court held:
Taking into account the competing interests articulated in Gerstein, we believe that a jurisdiction that provides judicial determinations of probable cause within 48 hours of arrest will, as a general matter, comply with the promptness requirement of Gerstein. For this reason, such jurisdictions will be immune from systemic challenges.
This is not to say that the probable cause determination in a particular case passes constitutional muster simply because it is provided within 48 hours. Such a hearing may nonetheless violate Gerstein if the arrested individual can prove that his or her probable cause determination was delayed unreasonably. Examples of unreasonable delay are delays for the purpose of gathering additional evidence to justify the arrest, a delay motivated by ill will against the arrested individual, or delay for delay's sake. In evaluating whether the delay in a particular case is unreasonable, however, courts must allow a substantial degree of flexibility. Courts cannot ignore the often unavoidable delays in transporting arrested persons from one facility to another, handling late-night bookings where no magistrate is readily available, obtaining the presence of an arresting officer who may be busy processing other suspects or securing the premises of an arrest, and other practical realities. Where an arrested individual does not receive a probable cause determination within 48 hours, the calculus changes. In such a case, the arrested individual does not bear the burden of proving an unreasonable delay. Rather, the burden shifts to the government to demonstrate the existence of a bona fide emergency or other extraordinary circumstance. The fact that in a particular case it may take longer than 48 hours to consolidate pretrial proceedings does not qualify as an extraordinary circumstance. Nor, for that matter, do intervening weekends. A jurisdiction that chooses to offer combined proceedings must do so as soon as is reasonably feasible, but in no event later than 48 hours after arrest.
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Under Gerstein, jurisdictions may choose to combine probable cause determinations with other pretrial proceedings, so long as they do so promptly. This necessarily means that only certain proceedings are candidates for combination. Only those proceedings that arise very early in the pretrial process-such as bail hearings and arraignments-may be chosen. Even then, every effort must be made to expedite the combined proceedings.
500 U.S. at 56-58.
There is every reason to believe that the standard set forth in the Riverside decision will be strictly construed by the federal courts. All federal circuit courts except one has held that Gerstein requires that the probable cause determination must ordinarily be made within twenty-four hours of arrest. For a discussion of these cases, see the dissenting opinion of Justice Scalia in Riverside, 500 U.S. at 63.
A probable cause determination proceeding is not to be confused with a first appearance hearing or a preliminary hearing. The determination of probable cause for detention is not required to be an adversarial proceeding and may be held in the absence of the defendant and of counsel. See Gerstein, 420 U.S. at 119-22 (concluding that a probable cause determination does not need to be "accompanied by the full panoply of adversary safeguards-counsel, confrontation, cross- examination, and compulsory process for witnesses").
Prior to amendments in 2013, Paragraph C of this Rule required the court to dismiss the complaint without prejudice if the court found no probable cause. However, as explained supra, the sole purpose of a probable cause for detention determination is to decide "whether there is probable cause for detaining the arrested person pending further proceedings." Gerstein, 420 U.S. at 120 (emphasis added). Accordingly, in 2013, this Rule was amended to clarify that a court should not dismiss the criminal complaint against the defendant merely because the court has found no probable cause for detention.
New Mexico statute also requires that every "accused shall be brought before a court having jurisdiction to release the accused without unnecessary delay." NMSA 1978, § 31-1-5(B) (1973). This language was apparently derived from Rule 5(a) of the Federal Rules of Criminal Procedure. See generally 1 Wright, Federal Practice and Procedure, § 74(1969).
The committee did not set forth a test for probable cause determinations as this is a matter 10 of developing case law. The test for probable cause determinations under the New Mexico 11 Constitution for arrest and search warrants based upon information from informants is a higher 12 standard than the United States Supreme Court "totality of circumstances" test under the Fourth 13 Amendment of the United States Constitution. See Massachusetts v. Upton, 466 U.S. 727, 73214 (1984); Illinois v. Gates, 462 U.S. 213, 238 (1983). New Mexico has continued to follow the 15 United States Supreme Court decisions of Aguilar v. Texas, 378 U.S. 108 (1964) and Spinelli v. 16 United States, 393 U.S. 410 (1969), out of which was derived a two-pronged test of: (1) revealing 17 the informant's basis of knowledge; and (2) providing facts sufficient enough to establish the 18 reliability or veracity of the informant. See State v. Cordova, 1989-NMSC-083, 109 N.M. 211, 19 784 P.2d 30.
This rule does not attempt to spell out what rights the accused may have in every situation; hence, for example, the rule provides that the accused is told of his right "if any" to a trial by jury. On the right to a jury trial for criminal contempt, see Bloom v. Illinois, 391 U.S. 194 (1968) and Taylor v. Hayes, 418 U.S. 488 (1974).
The right to assistance of counsel at every critical stage of the proceeding is fairly clear under New Mexico practice and procedure. See State v. Padilla, 2002-NMSC-016, ¶ 11, 132 N.M. 247, 46 P.3d 1247 ("There is no dispute that a criminal defendant charged with a felony has a constitutional right to be present and to have the assistance of an attorney at all critical stages of a trial. U.S. Const. amends. VI and XIV; N.M. Const. art II, § 14."); see also NMSA 1978, § 31-15-10(B) (2001). The only question remaining for the judge handling the first appearance is whether the accused is entitled to representation at state expense. The court must inform a person who is charged with any crime that carries a possible sentence of imprisonment and who appears in court without counsel of the right to confer with an attorney, and, if the person is financially unable to obtain counsel, of the right to be represented by counsel at all stages of the proceedings at public expense. See NMSA 1978, § 31-15-12(1993); see also Argersinger v. Hamlin, 407 U.S. 25, 3713 (1972) (holding "that absent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial"); Smith v. Maldonado, 1985-NMSC-115, ¶ 10, 103 N.M. 570, 711 P.2d 15 (same).
Assuming that the accused is appearing before the court on a felony complaint, the defendant is entitled to be advised of the right to a preliminary hearing to determine probable cause for prosecution. See N.M. Const. art. II, § 14.
[As revised, effective November 1, 1991; as amended by Supreme Court Order No. 13-8300-042, effective for all cases pending and filed on or after December 31, 2013.]
ANNOTATIONS The 2018 amendment, approved by Supreme Court Order No. 18-8300-024, effective February 1, 2019, authorized the court to set conditions of release immediately upon finding probable cause that the defendant committed an offense; in Subparagraph C(2), added the first sentence, after "If the court finds probable cause", deleted "that the defendant committed an offense", after "bailable offense, the court", deleted "shall" and added "may", and after "may set conditions of release", deleted "in accordance with" and added "immediately or within the time required under", and deleted "If the court finds that there is probable cause the court shall make such finding in writing.". The 2014 amendment, approved by Supreme Court Order No. 14-8300-016, effective December 31, 2014, prohibited the court from extending the time for making a probable cause determination beyond forty-eight hours, including Saturdays, Sundays and legal holidays; and in Paragraph A, added the third sentence. The 2013 amendment, approved by Supreme Court Order No. 13-8300-042, effective December 31, 2013, required the personal recognizance release of the defendant from custody pending trial if no probable cause is found; in Paragraph C, Subparagraph (1), added the title, after "the court shall", deleted "dismiss the complaint without prejudice and", after "order the immediate", added "personal recognizance", and after "release of the defendant", added the remainder of the sentence; and in Subparagraph (2), added the title. The 1991 amendment, effective for cases filed in the district courts on or after November 1, 1991, in Paragraph A, substituted "promptly but in any event within forty-eight (48) hours" for "within a reasonable time but in any event within twenty-four (24) hours" in the second sentence and deleted the former last sentence, relating to expiration of the prescribed period on a Saturday, Sunday, or legal holiday.
For explanation of rights at first appearance in the magistrate court, see Rule 6-501 NMRA. For waiver of counsel form, see Rule 9-401 NMRA. Arrest and release on same day. - Where a defendant is arrested without a warrant and released from custody on the same day as the arrest, the Rules of Criminal Procedure do not contemplate a probable cause determination by either the district court under Paragraph A of this rule or the magistrate court under Rule 6-203(A) NMRA 2003. State v. Gomez, 2003-NMSC-012, 133 N.M. 763, 70 P.3d 753. Setting of bail before counsel appointed. - Where, at defendant's first appearance in court, the court set bond "at the present time", before counsel was appointed, but with the condition that if counsel wanted to bring bail to the court's attention, a hearing would be held, and no request was subsequently made, the defendant, who was out on bail, was in no position to complain of trial court setting bond at first appearance rather than waiting until counsel appeared. State v. Quintana, 1974-NMCA-095, 86 N.M. 666, 526 P.2d 808, cert. denied, 86 N.M. 656, 526 P.2d 798. Rights of assistance and representation by counsel required. - Rights which are required to be explained to a defendant at his first appearance include the right to the assistance of counsel, and the possible right to representation by an attorney at state expense. State v. Warner, 1974-NMCA-034, 86 N.M. 219, 521 P.2d 1168. Scope of duty to advise. - The statutes do not make it a duty to advise of the charges on which an arrest is based, prior to his being brought before a magistrate. State v. Gibby, 1967-NMSC-219, 78 N.M. 414, 78 N.M. 414, 432 P.2d 258 (decided under former law). The rules promulgated by the supreme court do not require that waiver of the right to a jury in a trial de novo in district court on appeal from a metropolitan court conviction must be accompanied by advice to the defendant on the record in district court of his right to a jury trial. State v. Ciarlotta, 1990-NMCA-050, 110 N.M. 197, 793 P.2d 1350. Repeated warnings of Miranda rights are not necessary as a matter of law. State v. Carlton, 1972-NMCA-015, 83 N.M. 644, 495 P.2d 1091, cert. denied, 83 N.M. 631, 495 P.2d 1078 (decided under former law). Am. Jur. 2d, A.L.R. and C.J.S. references. - 21 Am. Jur. 2d Criminal Law §§ 589 to 599. Delay in taking before magistrate or denial of opportunity to give bail as supporting action for false imprisonment, 98 A.L.R.2d 966, 3 A.L.R.4th 1057. Accused's right to assistance of counsel at or prior to arraignment, 5 A.L.R.3d 1269. Admissibility of confession or other statement made by defendant as affected by delay in arraignment - modern state cases, 28 A.L.R.4th 1121. 22 C.J.S. Criminal Law § 357 et seq.