N.M. R. Crim. P. Dist. Ct. 5-208
N.M. R. Crim. P. Dist. Ct. 5-208
Committee commentary. - When a criminal action is docketed in a magistrate or metropolitan court by the filing of a complaint, either Rule 6-204 NMRA or Rule 7-204 NMRA, which are substantially identical to this rule, will govern the procedure.
Paragraph C of this rule requires a written showing of probable cause before an arrest warrant may be issued. The constitutional basis for this requirement is Section 10 of Article 2 of the New Mexico Constitution, although that provision does not expressly mention arrest warrants. Cf. State v. Gibby, 1967-NMSC-219, 78 N.M. 414, 432 P.2d 258.
Paragraph C of this rule codified case law allowing the issuance of a warrant on probable cause based on hearsay evidence. This provision was taken from Rule 4(b) of the Federal Rules of Criminal Procedure. See 48 F.R.D. 553, 558-60 (1970); 62 F.R.D. 271-72 (1974). Neither the proposed federal rule nor this rule attempts to establish what constitutes probable cause based on hearsay as that determination can only be made on a case by case basis, taking into account the unlimited variation and sources of information and the varying reliability of the information received by the affiant from others. 62 F.R.D. 271, 273-74 (1974). The fact that the information may involve double hearsay does not mean that the affidavit fails to provide probable cause. State v. Alderete, 1975-NMCA-058, 88 N.M. 14, 536 P.2d 278.
Paragraph C was amended in 2012 to permit alternate methods for requesting and issuing arrest warrants. See Rule 5-211(F) NMRA and the related committee commentary for more information.
Paragraph D was amended in 2024 to prevent release of defendants arrested on warrants before the defendant's first appearance or other hearing, with exceptions for penalty assessment misdemeanor charges and certain traffic code misdemeanor charges.
In 2019, this rule was amended to incorporate language from rules governing the courts of limited jurisdiction, which express a preference for the use of a summons when practicable. See Rule 6-204 NMRA; Rule 7-204 NMRA; Rule 8-203 NMRA.
[As amended by Supreme Court Order No. 12 8300 016, effective for all cases pending or filed on or after June 29, 2012; as amended by Supreme Court Order No. 19-8300-018, effective for all cases filed on or after December 31, 2019; as amended by Supreme Court Order No. S-1-RCR-2024-00068, effective for all cases pending or filed on or after May 8, 2024.]
ANNOTATIONS The 2024 amendment, approved by Supreme Court Order No. S-1-RCR-2024-00068, effective May 8, 2024, provided that the warrant for arrest may set condition of release for the defendant only for penalty assessment misdemeanor charges or certain traffic code misdemeanor charges, made certain technical changes, revised the committee commentary, and substituted "on" for "upon" throughout the rule; and in Subparagraph D(1), added "The warrant may set conditions of release for the defendant only for:", and added Items D(1)(a) and D(1)(b). The 2019 amendment, approved by Supreme Court Order No. 19-8300-018, effective for all cases pending or filed on or after December 31, 2019, substantially rewrote the rule to incorporate language from rules governing courts of limited jurisdiction, and revised the committee commentary; and deleted former Paragraphs B through D and added new Paragraphs B through D. The 2012 amendment, approved by Supreme Court Order No. 12-8300-016, effective for all cases pending or filed on or after June 29, 2012, added the last sentence in Paragraph D of the rule, and added the last paragraph of the committee commentary. Compiler's notes. - Paragraphs B and C are similar to Rules 4(c) and 9(b) of the Federal Rules of Criminal Procedure. Paragraph D is similar to Rules 4(a) and (c) and 9(a) of the Federal Rules of Criminal Procedure.
For issuance of summons or warrant, see Section 31-1-4 NMSA 1978. For forms on criminal summons, certificate of mailing, certificate of service and affidavit of service by other person making service, see Rule 9-208 NMRA. For affidavit for arrest warrant form, see Rule 9-209 NMRA. For inapplicability of Rules of Evidence to proceedings for issuance of arrest warrants and criminal summonses, see Rule 11-1101 NMRA. I. GENERAL CONSIDERATION. Judge lacks authority to order production of handwriting exemplars. - Absent legislative, or judicial, authorization, a judge has no authority to order a defendant either to produce handwriting exemplars or be held in contempt, prior to arrest or charge. Sanchez v. Attorney Gen., 1979-NMCA-081, 93 N.M. 210, 598 P.2d 1170. Law reviews. - For comment, "Criminal Procedure - Preventive Detention in New Mexico," see 4 N.M.L. Rev. 247 (1974). For survey, "Children's Court Practice in Delinquency and Need of Supervision Cases Under the New Rules," see 6 N.M.L. Rev. 331 (1976). Am. Jur. 2d, A.L.R. and C.J.S. references. - Private citizen's right to institute mandamus to compel a magistrate or other appropriate official to issue a warrant, or the like, for an arrest, 49 A.L.R.2d 1285. 22 C.J.S. Criminal Law § 334; 72 C.J.S. Process § 2. II. FORM. Generally. - A warrant is a writ or precept issued by a magistrate, justice or other competent authority, addressed to a sheriff, constable or other officer, requiring him to arrest the body of a person therein named, and bring him before the magistrate or court, to answer or be examined, touching some offense which he is charged with having committed. State v. Barreras, 1958-NMSC-085, 64 N.M. 300, 328 P.2d 74 (decided under former law). Purpose of warrant. - The purpose of a warrant is to acquire jurisdiction over the person of the accused, to bring him before the court. State v. Barreras, 1958-NMSC-085, 64 N.M. 300, 328 P.2d 74 (decided under former law). Unsigned warrant invalid. - Since the bench warrant upon which defendant was arrested was not properly signed by the court, the warrant was invalid and evidence seized thereunder must be suppressed. State v. Gurrola, 1995-NMCA-138, 121 N.M. 34, 908 P.2d 264. Effect of invalid complaint. - Where the warrant was issued on an invalid complaint, the district court did not lose jurisdiction to try the defendant on the subject charges. State v. Baca, 1970-NMCA-075, 81 N.M. 686, 472 P.2d 651, cert. denied, 81 N.M. 721, 472 P.2d 984 (decided under prior law). III. BASIS FOR WARRANT. Generally. - Before a warrant for arrest may be issued, the judicial officer issuing it must be supplied with sufficient information to support an independent judgment that probable cause exists for the warrant, so as to allow a relatively independent magistrate to be interposed between the arresting force and the citizen whose right not to be arrested without cause is guaranteed by U.S. Const., amend. IV. This probable cause standard must be at least as stringently applied in the case of warrantless arrests as in the instance of an arrest with a warrant. State v. Gorsuch, 1974-NMCA-143, 87 N.M. 135, 529 P.2d 1256. Generally, as to test for probable cause. - Before an arrest warrant may be issued, the magistrate issuing it "must be supplied with sufficient information to support an independent judgment that probable cause exists for the warrant" and the test for probable cause is whether the police officer has reasonable grounds for belief of defendant's guilt. State v. Alderete, 1975-NMCA-058, 88 N.M. 14, 536 P.2d 278. The substance of all the definitions of probable cause is a reasonable ground for belief of guilt. State v. Hilliard, 1970-NMCA-039, 81 N.M. 407, 467 P.2d 733. Reasonable grounds for belief under this rule is a state of facts that would lead the police officer, as a man of reasonable caution, to believe the defendant committed the crime for which he is arrested. State v. Alderete, 1975-NMCA-058, 88 N.M. 14, 536 P.2d 278. Examination of facts to be case by case. - The existence of "probable cause," whether for issuance of a search warrant or warrant of arrest, or for arrest without a warrant, or for search and seizure without a warrant, involves a case-by-case examination of the facts and no two cases are precisely alike. State v. Aull, 1967-NMSC-233, 78 N.M. 607, 435 P.2d 437, cert. denied, 391 U.S. 927, 88 S. Ct. 1829, 20 L. Ed. 2d 668 (1968). Sources of information. - In determining if probable cause exists, police officers may rely on information coming to them from official sources as well as other known reliable sources; therefore, a telephone call, followed by a letter, received by the police department from the federal bureau of investigation and connecting the defendant with the crime was held to be information coming from a responsible official source, and, therefore, it was sufficient to constitute probable cause and reasonable grounds for arrest. State v. Alderete, 1975-NMCA-058, 88 N.M. 14, 536 P.2d 278. Double hearsay acceptable. - Where the victim identified defendant as one of two men who shot him and this identification would have provided probable cause if given directly to the affiant detective, then the fact that the affiant detective's information was double hearsay did not keep that information from providing probable cause. State v. Alderete, 1975-NMCA-058, 88 N.M. 14, 536 P.2d 278.