N.M. R. Crim. P. Metro. Ct. 7-304

As amended through November 1, 2024

Rule 7-304 - Motions

A.Defenses and objections that may be raised. Any matter that is capable of determination without trial of the general issue, including defenses and objections, may be raised before trial by motion.

B.Motion requirements. An application to the court for an order shall be by motion which, unless made during a hearing or trial, shall be made in writing, shall state with particularity the grounds therefor, and shall set forth the relief or order sought. Motions shall be served on each party as provided by Rule 7-209 NMRA.

C.Unopposed motions. The moving party shall determine whether or not a motion will be opposed. If the motion will not be opposed, an order initialed by opposing counsel shall accompany the motion. The motion is not granted until the order is approved by the court.

D.Opposed motions. The motion shall recite that concurrence of opposing counsel was requested or shall specify why no such request was made. The moving party shall request concurrence from opposing counsel unless the motion is a

(1) motion to dismiss;

(2) motion regarding bonds and conditions of release;

(3) motion for new trial;

(4) motion to suppress evidence; or

(5) motion to modify a sentence under Rule 7-801 NMRA. Notwithstanding the provisions of any other rule, counsel may file with any opposed motion a brief or supporting points with citations or authorities. Affidavits, statements, depositions, or other documentary evidence in support of the motion may be filed with the motion.

E.Response. Unless otherwise specifically provided in these rules or by order of the court, if a party wants to file a written response to a motion, the written response shall be filed and served within fifteen (15) days after service of the motion. Affidavits, statements, depositions, or other documentary evidence in support of the response may be filed with the response.

F.Suppression of evidence.

(1) In cases within the trial court's jurisdiction

(a) a person aggrieved by a search and seizure may move for the return of the property and to suppress its use as evidence; and

(b) a person aggrieved by a confession, admission, or other evidence obtained through allegedly unconstitutional means may move to suppress such evidence.

(2) Unless otherwise ordered by the court, a motion to suppress shall be filed at least twenty (20) days before trial or the time specified for a motion hearing, whichever is earlier. Except for good cause shown, a motion to suppress shall be filed and decided prior to trial.

(3) Unless otherwise ordered by the court, the prosecution shall file a written response to a motion to suppress within fifteen (15) days after service of the motion. If the prosecution fails to file a response within the prescribed time period, the court may rule on the motion with or without a suppression hearing.

G.Motions to reconsider. A party may file a motion to reconsider any ruling made by the court at any time before entry of the judgment and sentence. A motion to reconsider the judgment and sentence or an appealable order entered before or after the judgment and sentence will toll the time to appeal only if the motion is filed within the permissible time for initiating the appeal. The court may rule on a motion to reconsider with or without a hearing.

N.M. R. Crim. P. Metro. Ct. 7-304

As amended, effective 1/1/1987;9/1/1990; as amended by Supreme Court Order No. 06-8300-037, effective 3/1/2007; as amended by Supreme Court Order No. 16-8300-029, effective for all cases pending or filed on or after12/31/2016; as amended by Supreme Court Order No. 19-8300-018, effective for all cases pending or filed on or after December 31, 2019.

Committee commentary. - A motion to suppress evidence under Paragraph F of this rule may be used to suppress or exclude evidence obtained through an unlawful search and seizure or obtained in violation of any constitutional right. See, e.g., State v. Harrison, 1970-NMCA-025, 81 N.M. 324, 466 P.2d 890 (motion to exclude lineup identification). In 2016, the committee moved the suppression provisions from Paragraph B to Paragraph F of this rule and added new time deadlines for motions to suppress and for responses. If a party cannot meet the time deadline for filing either a motion to suppress or a response, the party may ask the court, in its discretion, to grant a time extension under Rule 7-104(B) NMRA, a continuance under Rule 7-601(A) NMRA, or an extension of the time for commencement of trial under Rule 7-506(C) NMRA.

The paragraph addressing suppression motions previously was amended in 2013 in response to City of Santa Fe v. Marquez, 2012-NMSC-031, 285 P.3d 637. Marquez held that, absent good cause shown, motions to suppress must be filed prior to trial and suppression issues must be adjudicated prior to trial in order to preserve the state's right to appeal any order suppressing evidence. Id. ¶ 28; see Rule 5-212(C) NMRA & committee commentary. Prior to the entry of a final judgment in metropolitan court, the state may obtain judicial review of an order suppressing evidence by filing a nolle prosequi and reinstating the charges in district court. See State v. Heinsen, 2005-NMSC-035, ¶¶ 1, 23, 25, 28, 138 N.M. 441, 121 P.3d 1040; State v. Gardea, 1999-NMCA-116, ¶ 5, 128 N.M. 64, 989 P.2d 439; see also Rule 7-506.1 NMRA. But if the trial court enters an order at trial suppressing evidence and concludes that any remaining evidence is insufficient to proceed against the defendant, the defendant is acquitted, and the defendant's double jeopardy rights preclude the state from appealing. See Marquez, 2012-NMSC-031, ¶ 16; State v. Lizzol, 2007-NMSC-024, ¶ 15, 41 N.M. 705, 160 P.3d 886. Adjudicating suppression issues prior to trial ensures that the state will be able to exercise its right to appeal any order suppressing evidence.

If a defendant raises a suppression issue at trial, the trial judge may order a continuance under Rule 7-601(A) in order to ascertain whether there is good cause for the defendant's failure to raise the issue prior to trial. 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 motion and hold a suppression hearing. Absent good cause shown, the judge may deny the motion for failure to comply with the rule.

Paragraph G was added in 2019 to affirmatively provide for motions to reconsider, which have long been recognized in common law though not in our rules. See State v. Suskiewich, 2014-NMSC-040, ¶ 12, 339 P.3d 614 (?Although our procedural rules do not grant the State an express right to file a motion to reconsider a suppression order, the common law has long recognized the validity and utility of motions to reconsider in criminal cases.?). Consistent with Rule 12-201 NMRA, a motion to reconsider filed within the permissible time period for initiating an appeal will toll the time to file an appeal until the motion has been expressly disposed of or withdrawn.

[Adopted by Supreme Court Order No. 13-8300-044, effective for all cases filed or pending on or after December 31, 2013; as amended by Supreme Court Order No. 16-8300-029, effective for all cases pending or filed on or after December 31, 2016; as amended by Supreme Court Order No. 17-8300-022, effective for all cases pending or filed on or after December 31, 2017; as amended by Supreme Court Order No. 19-8300-018, effective for all cases pending or filed on or after December 31, 2019.]

ANNOTATIONS The 2017 amendment, approved by Supreme Court Order No. 17-8300-022, effective December 31, 2017, in the second paragraph of the committee commentary, changed "7-506A" to "7-506.1". The 2016 amendment, approved by Supreme Court Order No. 16-8300-029, effective December 31, 2016, moved the suppression provisions from Paragraph B to Paragraph F, set new time deadlines for filing a motion to suppress and for a response to a motion to suppress, allowed the court, in its discretion, to rule on a motion to suppress with or without a suppression hearing if the prosecution fails to file a response within the prescribed time period, made stylistic changes, and revised the committee commentary; in Paragraph A, in the heading, after "objections", deleted "which" and added "that"; deleted former Paragraph B and redesignated former Paragraphs C through F as Paragraphs B through E, respectively; in Paragraph B, in the heading, deleted "Motions and other papers" and added "Motion requirements"; in Subparagraph D(5), after "modify a sentence", deleted "pursuant to" and added "under"; in Paragraph E, after "provided in these rules", deleted "any" and added "or by order of the court, if a party wants to file a written response to a motion, the"; added a new Paragraph F; and in the committee commentary, added the first two paragraphs. The 2015 amendment, approved by Supreme Court Order No. 15-8300-017, effective December 31, 2015, made stylistic changes; in Paragraph A, in the heading, after "objections", deleted "which" and added "that"; in Paragraph B, after the heading, deleted the duplicate language "In cases within the trial court's jurisdiction"; and in Subparagraph E(5), after "modify a sentence", deleted "pursuant to" and added "under". The 2013 amendment, approved by Supreme Court Order No. 13-8300-044, effective December 31, 2013, required that motions to suppress be filed and determined prior to trial; and added Subparagraph (2) of Paragraph B. The 2006 amendment, approved by Supreme Court Order No. 06-8300-037, effective March 1, 2007, deleted former Paragraph B providing motions may be written or oral; deleted former Paragraph D relating to notice of hearings; relettered former Paragraph C as Paragraph B and added Paragraphs C through E to conform this rule with Rule 5-120 NMRA. The 1990 amendment, effective for cases filed in the metropolitan courts on or after September 1, 1990, substituted "Defenses and objections which may be raised" for "Subject matter" as the heading of Paragraph A and inserted "before trial" near the end of that paragraph.

For comparable district court rule, see Rule 5-120 NMRA. Am. Jur. 2d, A.L.R. and C.J.S. references. - 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. 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.