N.M. R. Crim. P. Dist. Ct. 5-212
N.M. R. Crim. P. Dist. Ct. 5-212
Committee commentary. - For the general rule governing motions, see Rule 5-601 NMRA.
The aggrieved person under Paragraphs A and B of this rule is the person who has standing to raise the issue. See State v. Nemrod, 85 N.M. 118, 509 P.2d 885 (Ct. App. 1973), and State v. Torres, 81 N.M. 521, 469 P.2d 166 (Ct. App. 1970).
The motion under Paragraph B of this rule is used to suppress or exclude evidence obtained in violation of any constitutional rights, not only that obtained by an unlawful search and seizure. See e.g., State v. Harrison, 81 N.M. 324, 466 P.2d 890 (Ct. App. 1970) (motion to exclude lineup identification).
Paragraph B was amended in 2012 in response to City of Santa Fe v. Marquez, 2012-NMSC-031, 285 P.3d 637. Marquez held prospectively "that Rule 5-212(C) requires that motions to suppress be filed before trial and that the district court must adjudicate suppression issues before trial, absent good cause." Id. ¶ 28. If a suppression issue is untimely raised, the trial judge may order a continuance in order to ascertain whether there is good cause for the late filing. Examples of good cause may include, but are not limited to, failure of the prosecution to disclose evidence relevant to the motion to suppress to the defense prior to trial, failure of either party to provide discovery, or the discovery of allegedly suppressable evidence during the course of the trial. If good cause is shown, the judge may excuse the late filing and hold a hearing pursuant to Paragraph D. Absent good cause shown, the judge may deny the motion for failure to comply with the rule. If the motion to suppress is granted, the court may declare a mistrial.
At a hearing on a motion to suppress, the Rules of Evidence, except for the rules on privileges, do not apply. See Paragraph A of Rule 11-104 NMRA and Subparagraph (1) of Paragraph D of Rule 11-1101 NMRA. For example, hearsay evidence is admissible. United States v. Matlock, 415 U.S. 164, 94 Sup. Ct. 988, 39 L. Ed. 2d 242 (1974).
ANNOTATIONS The 2013 amendment, approved by Supreme Court Order No. 13-8300-016, effective December 31, 2013, changed the time for filing and deciding motions to suppress, and in Paragraph C, in the first sentence, after "suppress shall be", deleted "made within twenty (20) days after the entry of a plea" and added "filed no less than sixty (60) days prior to trial", and added the second sentence. Compiler's notes. - Paragraph A of this rule is similar to Rule 41(e) of the Federal Rules of Criminal Procedure.
For pretrial motions, defenses and objections, see Rule 5-601 NMRA. I. GENERAL CONSIDERATION. Deterrent purpose of exclusionary rule necessarily assumes that the police have engaged in willful, or at the very least negligent, conduct which has deprived the defendant of some right, and by refusing to admit evidence gained as a result of such conduct, the courts hope to instill in those particular investigating officers, or in their future counterparts, a greater degree of care toward the rights of an accused, but where the official action was pursued in complete good faith, the deterrence rationale loses much of its force. State v. Ramirez, 1976-NMCA-101, 89 N.M. 635, 556 P.2d 43, overruled on other grounds by City of Albuquerque v. Haywood, 1998-NMCA-029, 954 P.2d 93. Role of trial court in admissibility hearing. - It is always open to an accused to subjectively deny that he understood the precautionary warning and advice with respect to assistance of counsel, and when the issue is raised in an admissibility hearing it is for the court to objectively determine whether in the circumstances of the case the words used were sufficient to convey the required warning. State v. Ramirez, 1976-NMCA-101, 89 N.M. 635, 556 P.2d 43, overruled on other grounds by City of Albuquerque v. Haywood, 1998-NMCA-029, 954 P.2d 93. Role of appellate court. - Where the judge, on record, passed on the voluntariness and admissibility of defendant's statements at a suppression hearing, and submitted the statements to the jury with a charge which complied with UJI Crim. 40.40 (see now UJI 14-5040 NMRA), regarding voluntariness of confessions, the defendant's argument that his statements were the product of promises and inducements was to be considered with all the conflicting evidence, and it was not for the appellate court to substitute its own judgment for that of the trier of fact and the trial judge. State v. Ramirez, 1976-NMCA-101, 89 N.M. 635, 556 P.2d 43, overruled on other grounds by City of Albuquerque v. Haywood, 1998-NMCA-029, 954 P.2d 93. Effect of not objecting to voluntariness of confession. - Where confession is received in evidence without objection, no motion was made to strike nor to invoke the ruling of the court on this matter, it is not subject to consideration on appeal. State v. Soliz, 1968-NMSC-101, 79 N.M. 263, 442 P.2d 575 (decided under former law). II. PROPERTY. A. IN GENERAL. Purpose of prohibition against unreasonable searches and seizures. - The constitutional prohibition against unreasonable searches and seizures is so that people may be secure in their persons, houses, papers and effects, and does not apply to items viewed in an open field. State v. Aragon, 1976-NMCA-018, 89 N.M. 91, 547 P.2d 574, cert. denied, 89 N.M. 206, 549 P.2d 284, overruled on other grounds by State v. Rickerson, 1981-NMSC-036, 95 N.M. 666, 625 P.2d 1183. In the search and seizure context the prime purpose of an exclusionary rule is to deter future unlawful police conduct, and this rationale may be applicable to the right against compulsory self-incrimination. State v. Ramirez, 1976-NMCA-101, 89 N.M. 635, 556 P.2d 43, overruled on other grounds by City of Albuquerque v. Haywood, 1998-NMCA-029, 954 P.2d 93. B. SEIZED FROM BUILDINGS OR GROUNDS. Seizure of evidence from location not specified in warrant. - Where heroin seized during a search pursuant to a warrant was physically located on property upon which there was an unoccupied house, and not within the curtilage as specified in the warrant, it was held that although the warrant did not authorize a search outside the curtilage, the can containing the heroin was viewed from a place the officer had a right to be under the warrant, and, consequently, it was not discovered as a result of an illegal search. State v. Aragon, 1976-NMCA-018, 89 N.M. 91, 547 P.2d 574, cert. denied, 89 N.M. 206, 549 P.2d 284 (1976), overruled on other grounds by State v. Rickerson, 1981-NMSC-036, 95 N.M. 666, 625 P.2d 1183. Evidence seized on reservation. - Because there is nothing in either the Zuni constitution or the Zuni tribal law and order code which authorizes the Zuni tribal court to issue a search warrant, the evidence seized from a house on the Zuni reservation pursuant to such a warrant is inadmissible at trial in a New Mexico court, and the motion to suppress the evidence obtained during the search should have been granted. State v. Railey, 1975-NMCA-019, 87 N.M. 275, 532 P.2d 204. Search immediately after crime. - Where police followed robbery suspects to a house immediately after the crime, the fact that additional delay would have allowed time for disposing of clothing and contraband was an exigent circumstance and forcible entry by the police officers was a valid intrusion. State v. Hansen, 1974-NMCA-131, 87 N.M. 16, 528 P.2d 660. Simultaneous announcement and entering. - Where police officers armed with a search warrant had probable cause to believe and in good faith did believe that defendant was selling heroin from his home and that there was heroin therein, they had received information from an informant who had assisted in the investigation leading to the issuance of the warrant, that defendant kept a weapon in the house and that the officers would have to move rapidly or defendant would flush the heroin down the toilet, the officers were all experienced and knew that normally there is an attempt to get rid of heroin before police officers get into a house, and after knocking on the door and announcing that they were police officers, they could see people moving and hear the sound of voices coming from inside the house, one of which was yelling or screaming as if someone was calling to another for the purpose of getting attention, the circumstances justified the officers in entering after knocking and announcing that they were police officers without waiting to be invited or denied entry. State v. Sanchez, 1975-NMSC-059, 88 N.M. 402, 540 P.2d 1291, overruled on other grounds by State v. Attaway, 1994-NMSC-011, 117 N.M. 141, 870 P.2d 103. Other evidence observed in course of lawful search. - Where contraband was discovered when officers opened a cedar chest, a metal pill box in a purse and an overnight case while searching for heroin, the "plain view" doctrine did not justify its seizure of the contraband in this case. However, seizure of the contraband was permissible under the facts of this case because where permission has been given to search for a particular object, the ensuing search remains valid as long as its scope is consistent with an effort to locate that object and other evidence observed in the course of such a lawful search may also be seized. State v. Alderete, 1976-NMCA-001, 88 N.M. 619, 544 P.2d 1184. Where the presence of possibly hazardous chemicals provided the exigent circumstances necessary for a warrantless entry of defendant's residence, seizure of glassware and handguns was lawful because they were in plain view, and the exigencies of the situation permitted the opening of a briefcase without a warrant to search for other weapons or explosives. State v. Calloway, 1990-NMCA-110, 111 N.M. 47, 801 P.2d 117. Search of undercover agent's home. - The finding of the marijuana and LSD in the undercover agent's home after the officers were informed by the undercover agent was hardly a search, but if it was a search it was by permission of the owner of the house and a search after permission is given by one who has authority is valid. State v. Mosier, 1971-NMCA-138, 83 N.M. 213, 490 P.2d 471 (decided under former law). Effect of third-party consent. - Stolen items found in duffel bag in defendant's room were inadmissible where defendant occupied room in house rented by brother-in-law who gave police permission to search "my place of residence". A third party cannot consent to a search of a part of the premises within defendant's exclusive use and control. State v. Johnson, 1973-NMCA-119, 85 N.M. 465, 513 P.2d 399. Standing of visitor to challenge search and seizure. - To establish his standing to challenge a search and seizure, a visitor must show subjectively, by his conduct, that he had an expectation of privacy, and objectively that his expectation was reasonable; defendant did not make any specific showing concerning his expectation of privacy where he was among a group of people in the living room in the presence of marijuana. State v. Fairres, 2003-NMCA-152, 134 N.M. 668, 81 P.3d 611, cert. denied, 2003-NMCERT-003. C. SEIZED FROM MOTOR VEHICLE, ETC. General license and registration check. - Where defendant's car was stopped during a general license and registration check, and after a police request defendant opened the trunk, at which point the officer smelled marijuana, and subsequently opened a suitcase (also at the officer's request), it was held that the seizure of the marijuana residue found in the suitcase was not unlawfully accomplished. State v. Bloom, 1977-NMSC-016, 90 N.M. 192, 561 P.2d 465. Suppression of evidence was not warranted where officers stopped motorist for routine registration and license check, found Arizona driver's license and Connecticut registration in another's name, and upon asking driver what was in trunk, had right to ask if they could look in the trunk, and upon being given consent by the driver who opened the trunk, and upon smelling marijuana, had the right to ask for keys to footlockers and open them. State v. Bidegain, 1975-NMSC-060, 88 N.M. 466, 541 P.2d 971. Where no plain view or exigent circumstances. - The plain view doctrine did not apply to marijuana found in defendant's car, which was enclosed in a burlap-like sack, since neither of the police officers involved could testify that he was able to see inside the bag nor did exigent circumstances justifying a warrantless search exist where defendant's car was parked outside the sheriff's office, and the defendant and the other two occupants were in the sheriff's office under arrest. State v. Coleman, 1974-NMCA-147, 87 N.M. 153, 530 P.2d 947. Insufficient proof alcoholic beverages in possession of minors. - Where two officers who had stopped defendant's car for carelessly leaving the curb, saw alcoholic beverages therein (not a crime in and of itself) and neither officer ever explained why either of them believed any of the three occupants (all of whom had reached their majority) were under 21 (so as to, at that time, make possession of the alcohol illegal), the officers had no probable cause to search the car and defendant's motion to suppress should have been granted. State v. Ledbetter, 1975-NMCA-107, 88 N.M. 344, 540 P.2d 824. Inventory search. - An inventory search of an automobile does not violate U.S. Const., amend. IV when that automobile is in the lawful custody of the police in a reasonable exercise of its caretaking function; however, an inventory search is not constitutionally permissible absent a search warrant after police have relinquished possession, custody and control to a third party who has the legal right to possession, custody and control, and the trial court should have granted defendant's motion to suppress. State v. Clark, 1976-NMCA-109, 89 N.M. 695, 556 P.2d 851. Marijuana found in closed paper bag in locked trunk was admissible as police are not limited to plain view items when doing inventory of personal items left in arrested and jailed person's car. State v. Vigil, 1974-NMCA-065, 86 N.M. 388, 524 P.2d 1004, cert. denied, 86 N.M. 372, 524 P.2d 988, 420 U.S. 955, 95 S. Ct. 1339, 43 L. Ed. 2d 432 (1975). Search of overdue rental vehicle. - When police stopped car which appeared reluctant to pass police vehicle and which turned out to be an overdue rental vehicle, there was no justification in making a warrantless search of the car, and seizure of the marijuana seeds and marijuana was unlawful because consent was not given, the search was not pursuant to an arrest, and there was no probable cause to warrant a search; therefore, the trial court correctly granted defendant's motion to suppress. State v. Brubaker, 1973-NMCA-152, 85 N.M. 773, 517 P.2d 908. Search two hours after arrest. - A search that occurred around two hours after the arrest when the evidence is sufficient to show that the police officers had reasonable or probable cause to search the automobile at the place of arrest was valid, as this right continued to a search at the police station shortly thereafter. The search was not remote; therefore, the evidence seized from the car was properly admitted. State v. Courtright, 1972-NMCA-009, 83 N.M. 474, 493 P.2d 959 (decided under former law). Airplane alert bulletin not probable cause. - Where superior officer was notified that there was an alert bulletin out on a certain airplane, radioed to another officer to arrest pilot and search airplane, resulting in statements being made and the discovery of marijuana, there was no probable cause, and the statements and marijuana were an exploitation of an illegal arrest and inadmissible. State v. Gorsuch, 1974-NMCA-143, 87 N.M. 135, 529 P.2d 1256. D. SEIZED FROM PERSON. Reasonable suspicion that the defendant was armed and dangerous. - Where police officers asked the defendant to step outside his residence; the defendant kept his hand in his pocket as he opened the door; the defendant twice refused to comply with the officers' orders to take his hand out of his pocket; one officer grabbed the wrist of the defendant's hand that was in the pocket; the defendant removed his hand from his pocket while the officer continued to hold on to the defendant's wrist; the defendant had past interactions with the officers; the officers were aware that the defendant was known to carry a pocketknife; and the officers were nervous about their safety because the defendant had complied with their requests in the past, but was not compliant in this instance, the officers had a reasonable suspicion that the defendant was armed and dangerous which justified the officer's seizure of the defendant's hand. State v. Talley, 2008-NMCA-148, 145 N.M. 127, 194 P.3d 742. Observations by experienced officer. - A police officer who testified he had been working in narcotics for approximately four years, had made numerous arrests in the area, for the year prior to defendant's arrest had spent almost every day in the area, was acquainted with many addicts and had discussed methods of carrying and hiding small quantities of narcotics, had reasonable grounds for belief that defendant, based on the officer's observance of his conduct, was in possession of heroin and, therefore, had probable cause for the detention and search and seizure which disclosed the heroin. State v. Blea, 1975-NMCA-129, 88 N.M. 538, 543 P.2d 831, cert. denied, 89 N.M. 5, 546 P.2d 70. Search and seizure incident to lawful arrest. - Where there is probable cause for the arrest, the search and seizure, contemporaneous with the arrest, was valid as an incident of the arrest; therefore, the trial court did not err in denying the motion to suppress or in admitting the heroin at trial. State v. Garcia, 1971-NMCA-186, 83 N.M. 490, 493 P.2d 975, cert. denied, 83 N.M. 473, 493 P.2d 958 (1972) (decided under former law). The trial court properly denied defendant's motion to suppress evidence seized from his person, where defendant was arrested for public drunkenness (prior to repeal of the offense of drunkenness), and the police officer searched defendant finding a marijuana cigarette and a glasses case which contained heroin, since the full search of the person of the suspect made incident to a lawful custodial arrest does not violate the U.S. Const., amends. IV and XIV, and having authority to search the glasses case, the right to open it naturally followed. State v. Barela, 1975-NMCA-117, 88 N.M. 446, 541 P.2d 435. Officer who could see cigarette with rolled up end in see-through shirt pocket of child, and who had previously seen traces of tobacco and marijuana nearby, had probable cause to grab cigarette out of pocket, and subsequent emptying of pockets, producing more marijuana, and arrest, were contemporaneous events and suppression of evidence was not warranted. In re Doe, 1976-NMCA-011, 89 N.M. 83, 547 P.2d 566, cert. denied, 89 N.M. 206, 549 P.2d 284. III. SUPPRESSION OF OTHER EVIDENCE. Requirements for valid statement. - For defendant to make a valid statement the defendant must have had sufficient mental capacity at the time he made the statement, to be conscious of the physical acts performed by him, to retain them in his memory, and to state them with reasonable accuracy, and where there was evidence which met this standard, the trial court did not err in refusing to suppress the consent to search. State v. Chavez, 1975-NMCA-119, 88 N.M. 451, 541 P.2d 631. Constitutionality of confession taken in violation of statutory provision. - The supreme court, although not reaching the question of suppression of confession, indicated that, in case where confession was given by indigent during forcible detention after twice being given and waiving the Miranda warnings, before public defender was notified of detention, in violation of Section 31-15-12 NMSA 1978 of the Public Defender Act, the U.S. Const., amends. V and VI rights were not violated, entirely apart from whether they were waived, that prejudice was not shown, that for suppression to be warranted both would be required, and reversed the trial court and court of appeals who had suppressed evidence on basis that confessions violated U.S. Const., amends. V and VI. State v. Rascon, 1976-NMSC-016, 89 N.M. 254, 550 P.2d 266. Coercion necessary. - The right against self-incrimination must involve an element of coercion since the clause provides that a person shall not be compelled to give evidence against himself; where defendant twice insisted on making a confession, twice was given Miranda warnings and still insisted on making statements, defendant's statements were obtained in a manner indicating that they were given voluntarily within the meaning of fundamental fairness, and the deterrence of overzealous and unlawful police activity would not be served by their exclusion. State v. Ramirez, 1976-NMCA-101, 89 N.M. 635, 556 P.2d 43, overruled on other grounds by City of Albuquerque v. Haywood, 1998-NMCA-029, 954 P.2d 93. Effect of noncompliance with Miranda procedures. - Any statement given without compliance with the Miranda procedures cannot be admitted in evidence against the accused over his objection, even if it is wholly voluntary. State v. Ramirez, 1976-NMCA-101, 89 N.M. 635, 556 P.2d 43, overruled on other grounds by City of Albuquerque v. Haywood, 1998-NMCA-029, 954 P.2d 93. Where defendant made confession before being advised of his rights, motion to suppress was properly denied where defendant testified at trial that he shot decedent in self-defense and jury was instructed on issue of voluntariness. State v. Romero, 1974-NMCA-090, 86 N.M. 674, 526 P.2d 816, cert. denied, 86 N.M. 656, 526 P.2d 798. Where petitioner had no attorney when the statement was given and claims that he had not been advised that he did not have to make any statement at all, and that if he did make a statement it could be used against him on a trial, no prejudice is shown where it was typed on the form that he did not have to make any statement. Pece v. Cox, 1964-NMSC-237, 74 N.M. 591, 396 P.2d 422 (decided under former law). Exploitation of prior illegal statement. - The fact that defendant may have understood his rights at the time of a later statement did not discharge state's burden of showing that later statement was not exploitation of prior illegal statement, and it was improper to admit the later incriminating statement at trial for armed robbery. State v. Dickson, 1971-NMCA-020, 82 N.M. 408, 482 P.2d 916 (decided under former law). Effect of photograph on in-court identification of defendant. - Where victim was robbed by two men, went to police headquarters and looked at more than 10 mug shots with no officer in the room, made no identification, returned the next day, was shown five mug shots, identified one robber, not defendant, returned a few days later, was shown five more mug shots, identifying defendant, the record was void of any indication that in-court identification of defendant was tainted. State v. Beal, 1974-NMCA-054, 86 N.M. 335, 524 P.2d 198. Suppression of in-court identification of defendant was denied where identification was independent and unhesitating. Here, prosecutrix was shown, during the course of the investigation, a group of photographs, including one of defendant, which were not introduced at trial nor alluded to in the presence of the jury; the in-court identification of defendant was permissible where the individuals in the photographs were similar in appearance and were not so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. State v. Armstrong, 1973-NMCA-081, 85 N.M. 234, 511 P.2d 560, cert. denied, 85 N.M. 228, 511 P.2d 554, overruled on other grounds by State v. Elliott, 1975-NMCA-087, 88 N.M. 187, 539 P.2d 210. Where victim's testimony was to the effect that intruder was in her presence for approximately an hour and 40 minutes, and at the police station she described the intruder by height, style of haircut and "big lips", showing the victim the driver's license photograph when victim knew the driver's license came from the wallet she had taken from the rapist's pocket, it was not error to admit evidence of the out-of-court identification of defendant from the photographs, and the in-court identification was not inadmissible because of taint by an illegal pretrial identification. State v. Baldonado, 1971-NMCA-068, 82 N.M. 581, 484 P.2d 1291 (decided under former law). Improper inducement. - Where 18-year-old defendant had been advised by his mother to go to a former district attorney if he ever needed help, went, made confession and produced evidence believing the charges would be dropped, the confession and evidence were entitled to be suppressed. State v. Benavidez, 1975-NMCA-013, 87 N.M. 223, 531 P.2d 957. Involuntary confession. - Promises of leniency on the part of police can be coercive and may render a defendant's subsequent statement involuntary. State v. Talayumptewa, 2015-NMCA-008. Burden on the State. - On a claim that the police coerced a statement from defendant, the prosecution bears the burden of proving by a preponderance of the evidence that a defendant's statement was voluntary, that it was not extracted from an accused through fear, coercion, hope of reward, or other improper inducements, and an appellate court reviews the entire record and the circumstances under which the statement or confession was made in order to make an independent determination of whether a defendant's confession was voluntary. State v. Talayumptewa, 2015-NMCA-008. Test for Implied promise of leniency. - An implied promise of leniency occurs when the accused could reasonably infer a promise going to the punishment for the crime to be confessed. State v. Talayumptewa, 2015-NMCA-008. Promises of leniency. - Where officers made numerous implied promises of leniency to defendant, including promises of reduced charges and less prison time, inducing defendant to make incriminatory statements, the district court did not err in finding the statements involuntary and in suppressing the evidence. State v. Talayumptewa, 2015-NMCA-008. Suggestive elements not invalidating on-the-scene confrontation. - During a showup, the facts that defendant was either the sole occupant of the police car or was standing alongside the police car and was in the presence of police officers during the confrontation with the witness were simply the usual elements in any police conducted on-the-scene confrontation, and while these elements are suggestive, they were not unnecessarily so and were to be considered by the trial court in evaluating the totality of the circumstances; in themselves they do not require exclusion of the evidence. State v. Torres, 1975-NMCA-148, 88 N.M. 574, 544 P.2d 289. Effect of arrest and confession in another state. - The Philadelphia police were entitled to act on the Phoenix police department's telephone request and to assume that Phoenix had probable cause for making it, and since defendant did not contend that the Phoenix police lacked probable cause to arrest him for crimes committed in Arizona, defendant's arrest by the Philadelphia police was lawful, and the confession thereafter obtained from him was admissible. State v. Carter, 1975-NMCA-115, 88 N.M. 435, 540 P.2d 1324. Admission of blood test. - Absent a valid warrant or consent by the defendant, an arrest prior to the taking of a blood alcohol test is an essential element in order to constitute a reasonable search and seizure. Admission into evidence of the results of a blood test which does not meet this standard is reversible error. State v. Richerson, 1975-NMCA-027, 87 N.M. 437, 535 P.2d 644, cert. denied, 87 N.M. 450, 535 P.2d 657. IV. TIME FOR FILING. Paragraph C of Rule 5-212 NMRA requires that motions to suppress be filed before trial and that the district court adjudicate any suppression issues prior to trial, absent good cause for delaying such rulings until trial. City of Santa Fe v. Marquez, 2012-NMSC-031, 285 P.3d 637, overruling in part County of Los Alamos v. Tapia, 1990-NMSC-038, 109 N.M. 736, 790 P.2d 1017 and State v. Katrina G., 2008-NMCA-069, 144 N.M. 205, 185 P.3d 376 . Adverse consequences of failure to adjudicate suppression issues prior to trial. - Where the municipal court found defendant guilty of driving while intoxicated in violation of a municipal ordinance; defendant appealed to the district court for a de novo trial; defendant did not assert at any point prior to the close of the municipality's case that the arresting officer lacked reasonable suspicion to initiate the DWI investigation and did not move to suppress the evidence flowing from the investigation; and after the municipality rested its case, the district court ruled that the arresting officer's DWI investigation was unlawful, suppressed all evidence from the investigation, and dismissed the DWI charges against defendant, implicitly holding that the evidence was insufficient to support defendant's conviction of DWI, the municipality's appeal was barred by double jeopardy because the municipality had presented evidence against defendant to the district court and was barred from retrying defendant. City of Santa Fe v. Marquez, 2012-NMSC-031, 285 P.3d 637, overruling in part County of Los Alamos v. Tapia, 1990-NMSC-038, 109 N.M. 736, 790 P.2d 1017 and State v. Katrina G., 2008-NMCA-069, 144 N.M. 205, 185 P.3d 376 . As a general rule, a motion to suppress evidence is not required to be made before trial and may be made at trial. State v. Katrina G., 2008-NMCA-069, 144 N.M. 205, 185 P.3d 376, overruled by City of Santa Fe v. Marquez, 2012-NMSC-031, 285 P.3d 637. Time limitation of Subdivision (c) (see now Paragraph C) does not violate defendant's constitutional right to be heard on the voluntariness of a confession. State v. Gallegos, 1978-NMCA-121, 92 N.M. 336, 587 P.2d 1347. Issue not thereby foreclosed. - Defendant's right to be heard on whether the prosecutor had laid a sufficient foundation for the admission of inculpatory statements was not barred by the fact that he had not sought to suppress the statements under Subdivision (c) (see now Paragraph C). State v. Gallegos, 1978-NMCA-121, 92 N.M. 336, 587 P.2d 1347. Defendant's duty to move for suppression of evidence before trial is discretionary. State v. Doe, 1979-NMCA-032, 93 N.M. 143, 597 P.2d 1183 (motion for rehearing). Effect of not suppressing evidence before or during trial. - Where defendant asserted his arrest had been illegal and the subsequent finding of heroin "arose" from the claimed illegal arrest so that he was deprived of his fundamental rights by the admission into evidence of the heroin, but did not attempt to suppress this evidence prior to trial nor object to testimony relative thereto at trial, and, despite defendant's claim that under the "harmless error" rule no error is harmless if it is inconsistent with substantial justice, and his reliance on the "plain error" rule, the court of appeals could not hold there was an illegal arrest as a matter of law. State v. Bauske, 1974-NMCA-078, 86 N.M. 484, 525 P.2d 411. Where defendant waited until trial to object to admission of confession, the failure of defendant to file a timely motion to suppress statement, made directly after seizure of heroin, on grounds rights not given, resulted in prejudice to the state, and since in such circumstances it would be contrary to the ends of public justice to carry the first trial to a final verdict, the trial court did not abuse its discretion in declaring a mistrial; there was no double jeopardy. State v. Aragon, 1976-NMCA-018, 89 N.M. 91, 547 P.2d 574, cert. denied, 89 N.M. 206, 549 P.2d 284, overruled on other grounds by State v. Rickerson, 1981-NMSC-036, 95 N.M. 666, 625 P.2d 1183. Objection waived. - In the absence of an objection from the state to consideration of a motion to suppress evidence, and its affirmatively arguing its merits to the district court, the state waived its objection to the motion. State v. Gutierrez, 2005-NMCA-015, 136 N.M. 779, 105 P.3d 332, cert. denied, 2005-NMCERT-001. V. HEARING. Challenge to veracity of statements made in affidavit underlying warrant. - At a hearing under this rule, the person aggrieved has the right to challenge the veracity of statements made in an affidavit underlying a search warrant. The defendant is entitled to a hearing which delves below the surface of a facially sufficient affidavit if he has made an initial showing of either (1) any misrepresentation by the government agent of a material fact or (2) an intentional misrepresentation by the government agent, whether or not material. Once a hearing is granted, however, more must be shown to suppress the evidence, i.e., the trial court must find that the government agent was either recklessly or intentionally untruthful. State v. Gutierrez, 1978-NMCA-026, 91 N.M. 542, 577 P.2d 440. Effect of failure to request hearing. - Where no request was made at the trial for a hearing on the voluntariness of a confession, and the explanation of rights form and the confession were admitted in evidence without objection, no foundation was laid by the defense which required the trial court to give UJI Crim. 40.40 (see now UJI 14-5040 NMRA). State v. McCarter, 1980-NMSC-003, 93 N.M. 708, 604 P.2d 1242. Admission of confession without hearing. - An evidentiary hearing on the issue of involuntariness to confess due to insanity is constitutionally required when a defendant requests it or when the defendant attempts to offer proof that he was not mentally competent to make the confession. However, a confession is presumed to be given by a mentally competent person and the burden is on the defendant to show some evidence to the contrary. Where defendant failed to demand an evidentiary hearing and did not show that he had evidence to submit on his incompetence to confess, nor was there evidence in the record of coercion, prolonged interrogation or anything which might make the confession involuntary, it was proper for the court to admit the evidence of the confession, along with evidence of the defendant's state of mind at the time of the confession, to allow the jury to decide the weight to be accorded the confession. State v. Lujan, 1975-NMSC-017, 87 N.M. 400, 534 P.2d 1112, cert. denied, 423 U.S. 1025, 96 S. Ct. 469, 46 L. Ed. 2d 400. Where failure to conduct hearing not error. - The trial court did not err in failing to conduct a hearing on a pretrial motion to suppress statements made by defendants when the motion was never brought to its attention. State v. Dosier, 1975-NMCA-031, 88 N.M. 32, 536 P.2d 1088, cert. denied, 88 N.M. 28, 536 P.2d 1084. Effect of failure to rule on pretrial motion to suppress. - Defendant has a constitutional right to have a fair hearing and a reliable determination as to the voluntariness of his confession. The failure of the trial court to rule on pretrial motion to suppress confession was error and necessitated vacation of conviction and sentence pending trial court determination on issue of voluntariness of confession. State v. Gurule, 1972-NMCA-104, 84 N.M. 142, 500 P.2d 427. Use of evidence adduced at hearing. - Evidence adduced at a hearing on a motion to suppress could not be used to augment an otherwise defective affidavit. State v. Baca, 1973-NMCA-001, 84 N.M. 513, 505 P.2d 856. Defendants were prejudiced by the unconstitutional denial of their motion to suppress testimony used at hearing to suppress confession, when the trial court refused to guarantee that none of the testimony elicited from them therein would be admitted at their subsequent trial; a defendant cannot be required to elect between a valid fourth amendment claim or, in legal effect, a waiver of his fifth amendment privilege against self-incrimination. State v. Volkman, 1974-NMCA-079, 86 N.M. 529, 525 P.2d 889. Acceptance of evidence rights given and waived in Spanish. - Where the defendant spoke Spanish and the record reflected defendant's waiver in Spanish of his constitutional rights which were written in Spanish, the court of appeals took judicial notice of its English interpretation, and agreed with the trial court that the language of the waiver satisfied the requirements of due process. State v. Ramirez, 1976-NMCA-101, 89 N.M. 635, 556 P.2d 43, overruled on other grounds by City of Albuquerque v. Haywood, 1998-NMCA-029, 954 P.2d 93. Law reviews. - For article, "Survey of New Mexico Law, 1979-80: Criminal Law and Procedure," see 11 N.M.L. Rev. 85 (1981). Am. Jur. 2d, A.L.R. and C.J.S. references. - Admissibility of evidence discovered in search of adult defendant's property or residence authorized by defendant's minor child - state cases, 99 A.L.R.3d 598. Admissibility of evidence discovered in search of defendant's property or residence authorized by domestic employee or servant, 99 A.L.R.3d 1232. Admissibility of evidence discovered in search of defendant's property or residence authorized by defendant's spouse (resident or nonresident) - state cases, 1 A.L.R.4th 673. 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. Adequacy of defense counsel's representation of criminal client regarding confessions and related matters, 7 A.L.R.4th 180. Adequacy of defense counsel's representation of criminal client regarding search and seizure issues, 12 A.L.R.4th 318. Sufficiency of showing that voluntariness of confession or admission was affected by alcohol or other drugs, 25 A.L.R.4th 419. Admissibility of confession or other statement made by defendant as affected by delay in arraignment - modern state cases, 28 A.L.R.4th 1121. Propriety in state prosecution of severance of partially valid search warrant and limitation of suppression to items seized under invalid portions of warrant, 32 A.L.R.4th 378. Voluntariness of confession as affected by police statements that suspect's relatives will benefit by the confession, 51 A.L.R.4th 495. Coercive conduct by private person as affecting admissibility of confession under state statutes or constitutional provisions-post-connelly cases, 48 A.L.R.5th 555. Propriety of search of nonoccupant visitor's belongings pursuant to warrant issued for another's premises, 51 A.L.R.5th 375. Admissibility of evidence discovered in search of adult defendant's property or residence authorized by defendant's minor child-state cases, 51 A.L.R.5th 425. 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. What is "oral statement" of accused subject to disclosure by government under Rule 16(a)(1)(A), Federal Rules of Criminal Procedure, 39 A.L.R. Fed. 432. Admissibility of evidence discovered in search of defendant's property or residence authorized by defendant's relative, 48 A.L.R. Fed. 131. Admissibility of evidence discovered in warrantless search of property or premises authorized by one having ownership interest in property or premises other than relative, 49 A.L.R. Fed. 511. Propriety in federal prosecution of severance of partially valid search warrant and limitation of suppression to items seized under invalid portions of warrant, 69 A.L.R. Fed. 522. Admissibility of evidence not related to air travel security, disclosed by airport security procedures, 108 A.L.R. Fed. 658. 23A C.J.S. Criminal Law § 1224 et seq.