N.M. R. Mun. Ct. P. 8-202

As amended through August 23, 2024

Rule 8-202 - 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 municipal 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. The court may not extend the time for making a probable cause determination beyond forty-eight (48) hours. Saturdays, Sundays, and legal holidays shall be included in the forty-eight (48) hour computation, notwithstanding Rule 8-104(A) NMRA.

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 8-401 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 8-401 NMRA.

N.M. R. Mun. Ct. P. 8-202

As amended, effective 9/1/1990;11/1/1991; as amended by Supreme Court Order No. 13-8300-041, effective for all cases pending and filed on or after12/31/2013; as amended by Supreme Court Order No. 17-8300-023, 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 8-501 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 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, 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 2017 amendment, approved by Supreme Court Order No. 17-8300-023, 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; 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. 13-8300-041, effective December 31, 2013, limited the extension of time for making a probable cause determination; required the personal recognizance release of the defendant from custody pending trial if no probable cause is found; in Paragraph A, added the third and fourth sentences; 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 municipal 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 municipal courts on or after September 1, 1990, rewrote Paragraph A; deleted former Paragraph B, relating to time of determination, and redesignated former Paragraphs C and D as Paragraphs B and C; in Paragraph B, inserted "of whether there is probable cause" and substituted "nonadversarial" for "nonadversary" in the first sentence and added the last sentence; and rewrote Paragraph C.

For probable cause determination, see Rule 9-207A NMRA. For form on affidavit for arrest warrant, see Rule 9-209 NMRA. For form on affidavit for bench warrant, see Rule 9-211 NMRA. For statement of probable cause, see Rule 9-215 NMRA. Am. Jur. 2d, A.L.R. and C.J.S. references. - 5 Am. Jur. 2d Arrest §§ 47, 54. Civil liability for improper issuance of search warrant or proceedings thereunder, 45 A.L.R. 605. Search of automobile without a warrant by officers relying on description of persons suspected of a crime, 60 A.L.R. 299. Sufficiency of showing probable cause for search warrant for intoxicating liquor, 74 A.L.R. 1418. Arrest, or search and seizure, without warrant on suspicion or information as to unlawful possession of weapons, 92 A.L.R. 490. Peace officer's delay in making arrest without a warrant for misdemeanor or breach of peace, 58 A.L.R.2d 1056. Issuance of second search warrant after lapse of time for executing first, without additional showing of probable cause, 100 A.L.R.2d 525. Propriety of considering hearsay evidence or other incompetent evidence in establishing probable cause for issuance of search warrant, 10 A.L.R.3d 359. Propriety of consideration of credibility of witness in determining probable cause at state preliminary hearing, 84 A.L.R.3d 811. Admissibility of evidence discovered in search of defendant's property or residence authorized by defendant's adult relative other than spouse - state cases, 4 A.L.R.4th 196. Admissibility of evidence discovered in search of defendant's property or residence authorized by one, other than relative, who is cotenant or common resident with defendant - state cases, 4 A.L.R.4th 1050. Disputation of truth of matters stated in affidavit in support of search warrant - modern cases, 24 A.L.R.4th 1266. Admissibility of evidence discovered in search of defendant's property or residence authorized by defendant's adult relative other than spouse-state cases, 55 A.L.R. 5th 125. 6A C.J.S. Arrest § 6; 22 C.J.S. Criminal Law §§ 339, 349.