N.M. R. Crim. P. Magist. Ct. 6-203
N.M. R. Crim. P. Magist. Ct. 6-203
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 proceeding to determine probable cause to detain pending trial is not to be confused with a first appearance hearing, see Rule 6-501 NMRA, or a preliminary examination to determine probable cause to prosecute under Article II, Section 14 of the New Mexico Constitution, see Rule 6-202 NMRA. The determination of probable cause to detain 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 pending trial.
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, effective for all cases pending or filed on or after 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. 17-8300-023, 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. 13-8300-042, 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 2007 amendment, approved by Supreme Court Order No. 07-8300-025, effective November 1, 2007, amends Paragraph A to provide for a probable cause determination to be made by a magistrate, metropolitan or district court judge; amends Paragraph B to provide that a written showing of probably cause within 48 hours after custody commences or at the first appearance whichever occurs earlier; amends Paragraph C to provide for a dismissal of the complaint if the complaint or any amended complaint fails to show probable cause. The 1991 amendment, effective for cases filed in the magistrate 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 of the paragraph, relating to expiration of the prescribed period on a Saturday, Sunday, or legal holiday. The 1990 amendment, effective for cases filed in the magistrate courts on or after September 1, 1990, added "arrests without a warrant" to the catchline; rewrote Paragraph A; deleted former Paragraph B, relating to time of determination, and redesignated former Paragraphs C and D as present Paragraphs B and C; in present Paragraph B, inserted "whether there is probable cause" near the beginning, substituted "nonadversarial" for "nonadversary" in the first sentence, and added the last sentence; and in present Paragraph C, added "Probable cause determination;" to the paragraph heading, rewrote the first sentence, and added the second, third, and fourth sentences.
For probable cause determination form, see Rule 9-207A NMRA. For statement of probable cause, see Rule 9-215 NMRA. Test at preliminary hearing is not whether guilt is established beyond a reasonable doubt, but whether there is that degree of evidence to bring within reasonable probabilities the fact that a crime was committed by the accused. State v. Vallejos, 1979-NMCA-089, 93 N.M. 387, 600 P.2d 839, cert. denied, 93 N.M. 205, 598 P.2d 1165. Evidence found to support belief that defendant committed crime. - While no evidence was presented at the preliminary hearing on the cause of death of the victim, the magistrate still had probable cause to believe that the defendant committed the crime of murder where the evidence showed that the defendant shot the deceased, who remained in the hospital until his death. State v. Vallejos, 1979-NMCA-089, 93 N.M. 387, 600 P.2d 839, cert. denied, 93 N.M. 205, 598 P.2d 1165. Arrest and release on same day. - Where a defendant is arrested without a warrant and released from custody on the same day as the arrest, the Rules of Criminal Procedure do not contemplate a probable cause determination by either the district court under Rule 5-301(A) NMRA 2003 or the magistrate court under Paragraph A of this rule. State v. Gomez, 2003-NMSC-012, 133 N.M. 763, 70 P.3d 753. Am. Jur. 2d, A.L.R. and C.J.S. references. - 21 Am. Jur. 2d Criminal Law §§ 411 to 432. 22 C.J.S. Criminal Law § 339.