N.M. R. Crim. P. Magist. Ct. 6-208

As amended through November 1, 2024

Rule 6-208 - Search warrants

A.Issuance. A warrant may be issued by the court to search for and seize any of the following:

(1) property that has been obtained or is possessed in a manner which constitutes criminal offense;

(2) property designed or intended for use or that is or has been used as the means of committing a criminal offense;

(3) property that would be material evidence in a prosecution for a criminal offense; or

(4) a person for whose arrest there is probable cause or who is unlawfully restrained. A warrant shall issue only on a sworn written statement of the facts showing probable cause for issuing the warrant.

B.Contents. A search warrant shall be executed by a full-time salaried state or county law enforcement officer, a municipal police officer, a campus security officer, an Indian tribal or pueblo law enforcement officer, or a civil officer of the United States authorized to enforce or assist in enforcing any federal law. The warrant shall state the date and time it was issued by the judge and shall contain or have attached the sworn written statement of facts showing probable cause for its issuance and the name of any person whose sworn written statement has been taken in support of the warrant. A search warrant shall direct that it be served between the hours of 6:00 a.m. and 10:00 p.m., according to local time, unless the issuing judge, by appropriate provision in the warrant, and for reasonable cause shown, authorizes its execution at any time.

C.Form. A search warrant shall be substantially in the form approved by the Supreme Court.

D.Execution. A search warrant shall be executed within ten (10) days after the date of issuance. The officer seizing property under the warrant shall give to the person from whom or from whose premises the property was taken a copy of the affidavit for search warrant, a copy of the search warrant, and a copy of the inventory of the property taken or shall leave the copies of the affidavit for search warrant, the search warrant, and inventory at the place from which the property was taken.

E.Return. The return of the warrant, or any duplicate original, shall be made promptly after execution of the warrant to the magistrate court issuing the warrant. The return shall be accompanied by a written inventory of any property taken. The inventory shall be made in the presence of the applicant for the warrant and the person from whose possession or premises the property was taken, if the person is present, or in the presence of at least one credible person other than the applicant for the warrant or the person from whose possession or premises the property was taken and shall be signed by the officer and the person or persons in whose presence the inventory was taken. The court shall upon request deliver a copy of the inventory to the person from whom or whose premises the property was taken and to the applicant for the warrant.

F.Probable cause. As used in this rule, "probable cause" shall be based on substantial evidence, which may be hearsay in whole or in part, provided there is a substantial basis for believing the source of the hearsay to be credible and for believing that there is a factual basis for the information furnished.

G.Methods for requesting warrant. A request for a search warrant may be made using any of the following methods, provided that the request should be made in writing whenever possible:

(1) by hand-delivery of an affidavit substantially in the form approved by the Supreme Court with a proposed search warrant attached;

(2) by oral testimony in the presence of the judge provided that the testimony is reduced to writing, supported by oath or affirmation, and served with the warrant; or

(3) by transmission of the affidavit and proposed search warrant required under Subparagraph (1) of this paragraph to the judge by telephone, facsimile, electronic mail, or other reliable electronic means.

H.Testimony, oaths, remote transmissions, and signatures.

(1) Before ruling on a request for a warrant the judge may require the affiant to appear personally, telephonically, or by audio-video transmission and may examine under oath the affiant and any witnesses the affiant may produce, provided that any additional evidence shall be reduced to writing, supported by oath or affirmation, and served with the warrant.

(2) If the judge administers an oath or affirmation remotely to the affiant or any witnesses the affiant may produce, the means used must be designed to ensure that the judge confirms the identity of the affiant and any witnesses the affiant may produce.

(3) If the judge issues the warrant remotely, it shall be transmitted by reliable electronic means to the affiant and the judge shall file a duplicate original with the court. Upon the affiant's acknowledgment of receipt by electronic transmission, the electronically transmitted warrant shall serve as a duplicate original and the affiant is authorized, but not required, to write the words "duplicate original" on the transmitted copy. The affiant may request that the duplicate original warrant filed by the judge be sealed or lodged in accordance with Rule 6-114 NMRA.

(4) Any signatures required under this rule by the judge or affiant may be by original signature, a copy of an original signature, a computer generated signature, or any other signature otherwise authorized by law.

N.M. R. Crim. P. Magist. Ct. 6-208

As amended by Supreme Court Order No. 13-8300-011, effective for all cases pending or filed on or after7/15/2013; as amended by Supreme Court Order No. 17-8300-016, effective for all cases pending or filed on or after12/31/2017.

Committee commentary. - In 2013, Paragraphs G and H were added to permit multiple methods for requesting and issuing warrants. See Rule 5-211(F) NMRA and the related committee commentary for more information.

It is the obligation of each court to track the warrants it has issued and the warrants returned to it. The requirement in Paragraph H(3) of this rule that the judge file a duplicate original of a warrant issued remotely reaffirms this existing duty. Warrants issued via traditional means should already be tracked. Warrants issued remotely are no different. If a judge is concerned that filing a warrant prematurely may create a public and law enforcement safety issue, the warrant may be filed under seal, provided an appropriate order is entered in accordance with Paragraph F of Rule 6-114 NMRA.

[Adopted by Supreme Court Order No. 13-8300-011, effective for all cases pending or filed on or after July 15, 2013.]

ANNOTATIONS The 2017 amendment, approved by Supreme Court Order No. 17-8300-016, effective for all cases pending or filed on or after December 31, 2017, provided that a request for a search warrant should be made in writing whenever possible, and made certain technical revisions to the rule; in Paragraph E, after "property was taken, if", deleted "they are" and added "the person is"; in Paragraph F, after "shall be based", deleted "upon" and added "on"; in Paragraph G, in the introductory clause, after "following methods", added "provided that the request should be made in writing whenever possible"; and in Subparagraph H(1), after "provided that", deleted "such" and added "any". The 2013 amendment, approved by Supreme Court Order No. 13-8300-011, effective for all cases pending or filed on or after July 15, 2013, provided for multiple methods for requesting and issuing warrants; in Paragraph A, in the introductory sentence, after "and seize any", added "of the following"; in Paragraph B, in the second sentence, after "The warrant", added "shall state the date and time it was issued by the judge and"; in Paragraph E, in the first sentence, after "The return", added "of the warrant, or any duplicate original"; added Paragraph G; in Paragraph H, added the title of the paragraph; in Subparagraph (1) of Paragraph H, after "for a warrant the", deleted "court" and added "judge" and after "affiant to appear personally", added "telephonically, or by audio-video transmission"; and added Subparagraphs (2) through (4) of Paragraph H.

For form of affidavit for search warrant, see Rule 9-213 NMRA. For forms on search warrant, authorization for nighttime search and return and inventory, see Rule 9-214 NMRA. For notice of trial form, see Rule 9-501 NMRA. For application for inspectorial search order, see Rule 9-801 NMRA. For forms on inspection order and return, see Rule 9-802 NMRA. Showing of probable cause is not limited to written statements. - A "showing" of probable cause required under Article II, Section 10 of the New Mexico Constitution is not limited to a writing that the issuing judge sees rather than hears or ascertains by other means. Rather, the plain meaning of "showing" as used in Article II, Section 10 is a presentation or statement of facts or evidence that may be accomplished through visual, audible, or other sensory means. State v. Boyse, 2013-NMSC-024, rev'g 2011-NMCA-113, 150 N.M. 712, 265 P.3d 1285. A search warrant may be obtained by telephone. - Where a police officer, who was investigating cruelty to animals, prepared a detailed, type-written affidavit as part of an application for a search warrant of defendant's property; the officer contacted the on-call magistrate judge by telephone; over the telephone, the judge administered an oath to the officer who then read the written affidavit to the judge; the judge approved the search warrant over the telephone; and the officer noted the judge's approval on the search warrant form and executed the search warrant, the search warrant was valid because Article II, Section 10 of the New Mexico Constitution allows for requesting and approving search warrants by telephone. State v. Boyse, 2013-NMSC-024, rev'g 2011-NMCA-113, 150 N.M. 712, 265 P.3d 1285. Citizen-informer rule. - In order to apply the citizen-informer rule, the affidavit must affirmatively set forth circumstances which would allow a neutral magistrate to determine the informant's status as a citizen-informer. State v. Hernandez, 1990-NMCA-127, 111 N.M. 226, 804 P.2d 417. Nighttime searches. - Where defendant challenged the denial of his motion to suppress evidence from a nighttime search, since the search was conducted on people who were seen to be active in nighttime, and probable cause was developed in the nighttime, the search was constitutional. State v. Garcia, 2002-NMCA-050, 132 N.M. 180, 45 P.3d 900, cert. denied, 132 N.M. 193, 46 P.3d 100. Separate reasonable cause for authorization to execute a nighttime search is required. State v. Scott, 2006-NMCA-003, 138 N.M. 751, 126 P.3d 567, cert. granted, 2006-NMCERT-001. Am. Jur. 2d, A.L.R. and C.J.S. references. - 68 Am. Jur. 2d Searches and Seizures §§ 108 to 233. Use of electronic sensing device to detect shoplifting as unconstitutional search and seizure, 10 A.L.R.4th 376. Seizure of books, documents, or other papers under search warrant not describing such items, 54 A.L.R.4th 391. Lawfulness of search of person or personal effects under medical emergency exception to warrant requirement, 11 A.L.R.5th 52. 79 C.J.S. Searches and Seizures § 128 et seq.