N.M. R. Crim. P. Metro. Ct. 7-203

As amended through August 23, 2024

Rule 7-203 - Probable cause determination

A.General rule. A probable cause determination shall be made in all cases in which the arrest has been made without a warrant and the person has not been released upon some conditions of release. The probable cause determination shall be made by a metropolitan court judge promptly, but in any event within forty-eight (48) hours after custody commences and no later than the first appearance of the defendant, whichever occurs earlier. Saturdays, Sundays, and legal holidays shall be included in the forty-eight (48) hour computation, notwithstanding Rule 7-104(A) NMRA. If a metropolitan court judge is not reasonably available, the determination shall be made by a district judge.

B.Conduct of determination. The determination of whether there is probable cause shall be nonadversarial and may be held in the absence of the defendant and of counsel. The showing of probable cause shall be based upon 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 there is a factual basis for the information furnished. No witnesses shall be required to appear unless the court determines that there is a basis for believing that the appearance of one or more witnesses might lead to a finding that there is no probable cause. If the complaint and any attached statements fail to make a written showing of probable cause, an amended complaint or a statement of probable cause may be filed at the time of the probable cause determination with sufficient facts to show probable cause for detaining the defendant.

C.Probable cause determination; conclusion.

(1)No probable cause found. If the court finds that there is no probable cause to believe that the defendant has committed an offense, the court shall order the immediate personal recognizance release of the defendant from custody pending further proceedings. The defendant's release shall be subject only to the conditions that the defendant shall appear before the court as directed and shall not violate any federal, state, or local criminal law. The court shall not impose any additional conditions of release under Rule 7-401 NMRA.

(2)Probable cause found. If the court finds that there is probable cause that the defendant committed an offense, the court shall make such finding in writing. If the court finds probable cause, the court shall review the conditions of release. If no conditions of release have been set and the offense is a bailable offense, the court may set conditions of release immediately or within the time required under Rule 7-401 NMRA.

N.M. R. Crim. P. Metro. Ct. 7-203

As amended, effective 9/1/1990;11/1/1991; as amended by Supreme Court Order No. 13-8300-041, effective for all cases pending or filed on or after12/31/2013; as amended by Supreme Court Order No. 17-8300-016, effective for all cases pending or filed on or after12/31/2017; as amended by Supreme Court Order No. 18-8300-024, effective for all cases pending or filed on or after2/1/2019.

Committee commentary. - When a defendant has been arrested without a warrant and remains in custody, the Fourth Amendment to the United States Constitution requires a judicial determination of probable cause within forty-eight hours after arrest. See Gerstein v. Pugh, 420 U.S. 103 (1975) (holding that any significant pretrial restraint on liberty requires a prompt judicial determination of probable cause); Cnty. of Riverside v. McLaughlin, 500 U.S. 44, 56 (1991) (holding that a judicial determination "of probable cause within 48 hours of arrest will, as a general matter, comply with the promptness requirement of Gerstein").

A probable cause determination proceeding is not to be confused with a first appearance hearing, see Rule 7-501 NMRA, or a preliminary examination, see Rule 7-202 NMRA. The determination of probable cause can be made in a nonadversarial 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"). The probable cause determination is required only to assure in warrantless arrest cases that there is probable cause to detain the defendant.

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 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. Failure to make a probable cause determination does not void a subsequent conviction. See Gerstein, 420 U.S. at 119.

[Adopted by Supreme Court Order No. 13-8300-042, effective for all cases pending or 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 "bailable offense, the court", deleted "shall" and added "may", 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 2017 amendment, approved by Supreme Court Order No. 17-8300-016, effective December 31, 2017, provided that when a defendant is released following a court finding that the complaint failed to establish probable cause to believe that the defendant committed a criminal offense, the defendant's release shall be subject only to the conditions that the defendant shall appear before the court as directed and shall not violate any federal, state, or local criminal law; and in Subparagraph C(1), after "release of the defendant from custody pending", deleted "trial" and added the remainder of the subparagraph. The 2013 amendment, approved by Supreme Court Order No. 13-8300-042, effective December 31, 2013, provided that the time limit on the extension of time for making a probable cause determination includes Saturdays, Sundays, and legal holidays; required the personal recognizance release of the defendant from custody pending trial if no probable cause is found; in Paragraph A, added the third sentence; 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 metropolitan 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. The 1990 amendment, effective for cases filed in the metropolitan courts on or after September 1, 1990, rewrote this rule.

For probable cause determination form, see Rule 9-207A NMRA. For statement of probable cause, see Rule 9-215 NMRA.