Our rules of criminal procedure provide that a motion to suppress evidence is to be made within twenty days after entry of a plea, SCRA 1986, 5-212(C), but they do not require that such a motion be made prior to trial. See id., Committee Commentary; State v. Doe, 93 N.M. 143, 148, 597 P.2d 1183, 1188 (Ct.App. 1979) (defendant's duty to move for suppression of evidence before trial is discretionary). In the circumstances of this case at least, we agree with the Court of Appeals for the Fifth Circuit, passing upon a question expressly reserved in Serfass, 420 U.S. at 394, 95 S.Ct. at 1065, that "a defendant who for reasons of trial tactics delays until mid-trial a challenge to the indictment that could have been made before the trial โ and before jeopardy has attached โ is not entitled to claim the protection of the double jeopardy clause when his objections to the indictment are sustained."
Notwithstanding the timeliness issue, a determination of the legality of the search was not necessary for the jury's determination of whether the [C]hild had committed the delinquent act of involuntary manslaughter. {12} On appeal, Child argues that she did not lose the right to object to the admission of evidence on Fourth Amendment grounds by failing to file a timely pre-adjudicatory motion to suppress, citing as authority State v. Doe, 93 N.M. 143, 145, 597 P.2d 1183, 1185 (Ct.App. 1979). She also argues that the court erred in concluding that the nighttime search was valid.
This rule has been applied by the New Mexico appellate courts. In State v. Doe, 93 N.M. 143, 597 P.2d 1183 (Ct.App. 1979), we said: "The Fourth Amendment prohibition against unreasonable searches and seizures was designed to protect people from government searches and did not apply to the acts of private individuals." Id. at 145, 597 P.2d 1183 (citations omitted).
Jason argues that the children's court's denial of his motion to suppress should not have precluded him from arguing the merits of the motion before the special master. See State v. Doe, 93 N.M. 143, 145, 597 P.2d 1183, 1185 (Ct.App. 1979) (holding that child's failure to file a pre-adjudicatory motion to suppress evidence did not deny child the right to object to the admission of evidence at trial). However, we agree with the Court of Appeals that Jason did have the opportunity to argue the merits of his motion to suppress in a competency hearing before the children's court, in his motion to reconsider the competency ruling, and in his objections to the special master's report.
. . ."In re J.A., 406 N.E.2d 958, 960 (Ill.App.Ct. 1980);accord In re L.L., 280 N.W.2d 343, 347 (Wis.Ct.App. 1979) (holding juveniles are entitled to due process and exclusionary rule is "one of the basic elements of due process"). LaFave cites the following in support: In re Tyrell J., 876 P.2d 519 (Cal. 1994); In re Marsh, 237 N.E.2d 529 (Ill. 1968); In re J.A., 406 N.E.2d 958 (Ill.App.Ct. 1980); In re L.B., 240 A.2d 709 (N.J. 1968); State v. Lowry, 230 A.2d 907 (N.J. 1967); State v. Doe, 597 P.2d 1183 (N.M.Ct.App. 1979); In re Edwin R., 303 N.Y. So.2d 406 (N.Y. 1969); In re L.L., 280 N.W.2d 343 (Wis.Ct.App. 1979); Uniform Juvenile Court Act ยง 27(b) (1968). Other cases have similarly held that the exclusionary rule applies in juvenile delinquency hearings.
The Fourth Amendment does, however, apply to searches effected by a private party who is acting "as an instrument or agent of the Government." Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 614, 109 S.Ct. 1402, 1411, 103 L.Ed.2d 639 (1989); accord State v. Cox, 100 N.M. 667, 670, 674 P.2d 1127, 1130 (Ct.App. 1983); State v. Doe, 93 N.M. 143, 145-46, 597 P.2d 1183, 1185-86 (Ct.App. 1979). .
See, e.g., In re William G., 40 Cal.3d 550, 221 Cal.Rptr. 118, 709 P.2d 1287, 1298 (1985); Interest of L.L., 90 Wis.2d 585, 280 N.W.2d 343, 347 (1979); State v. Doe, 93 N.M. 143, 597 P.2d 1183, 1186 (1979); In re Marsh, 40 Ill.2d 53, 237 N.E.2d 529, 531 (1968); State in Interest of L.B., 99 N.J. Super. 589, 240 A.2d 709, 713 (1968); Cf. People in Interest of D.E.J., 686 P.2d 794, 796 (Colo. 1984); Matter of L.G.M., 704 P.2d 88, 89-90 (Okla. Crim. 1985).
First, preadjudicatory motions may be analogized to "pretrial motions." See, Committee Commentary to Rule 14 and State v. Doe, 93 N.M. 143, 597 P.2d 1183 (Ct.App. 1979). The concept of pretrial motions traditionally embodies rulings that are conducive to the orderly flow of trials.