Overview

Keyword Index

SECTION 1.1
JURISDICTION; TIME LIMITS

1.1-1 Jurisdiction
A. General
B. Jurisdiction: Monetary Limit
C. Subject-Matter Jurisdiction: Exclusions
D. Subject-Matter Jurisdiction: Kinds of Actions
E. Territorial Jurisdiction
F. Venue of Actions
G. Personal Jurisdiction
H. Indian Jurisdiction

1.1-2 Time Limits for Bringing Actions
A. Computation of Time Limits
B. Time Limits in General
C. Other Time Limits
D. Determination That Time Limit Has Passed

SECTION 1.2
CIVIL PROCEDURE BEFORE TRIAL

1.2-1 Complaint
A. Filing of Complaint and Docketing of Action
B. Other Matters Related to Complaint

1.2-2 Summons
A. Purpose
B. Issuance
C. Service of Process - General
D. Service of Process - Methods of Service
E. Service by Mail
F. Who May Serve
G. Proof of Service of Process; Return

1.2-3 Answer, Counterclaim, Third-Party Complaint
A. General
B. Counterclaim or Setoff
C. Third-Party Complaint
D. Interpleader
E. Filing of Answer
F. Jury Demand by Defendant
G. Clarifying or Amending Complaint or Answer
H. Service of the Answer
I. Defenses
J. Default

1.2-4 Pleadings and Motions
A. Service and Filing of Papers
B. Pleadings
C. Motions
D. Motion for Judgment on the Pleadings
E. Motion for Summary Judgment

1.2-5 Parties
A. Who may Sue; Real Party in Interest
B. Minors and Incapacitated Persons
C. Death or Incapacity; Transfer of Interest
D. Joinder of Parties
E. Pro Se and Attorney Appearance
F. Other Authorized Appearances
G. Attorney Appearance
H. Withdrawal or Attorney Failure to Act

1.2-6 Dismissal
A. Definitions; General
B. Voluntary Dismissal Without Court Order
C. Voluntary Dismissal By Court Order
D. Involuntary Dismissal By Court Order
E. Counterclaims, Cross-Claims
and Third-Party Claims
F. Costs of Previously Dismissed Action
G. Filing; Service

1.2-7 Other Preliminary Matters
A. Discovery
B. Pretrial Conference
C. Notice of Trial
D. Recording of Trial
E. Appointment of Special Master, Arbitrator or Metropolitan Court Judge Pro Tempore

1.2-8 Joint and Separate Trials
A. Reasons
B. Motions; Order

SECTION 1.3
JUDGMENT; ENFORCEMENT; APPEAL

1.3-1 Judgment
A. Definition
B. Entry of Judgment
C. Multiple Claims or Multiple Parties
D. Damages
E. Interest to Date
F. Costs to be Reimbursed (Taxing Costs)
G. Satisfaction of Judgment
H. Relief from Judgment: Clerical Mistake
I. Relief from Judgment: Void Judgment

1.3-2 Default Judgment
A. Definition; Types
B. Entry of Default Judgment
C. Motion to Set Aside Default Judgment
D. Multiple Parties

1.3-3 Reserved

1.3-4 Determination of Judgment Debtor's Assets
A. Judgment Debtor Examination
B. Deposition

1.3-5 Appeal
A. Right of Appeal
B. Notice of Appeal
C. Record on Appeal
D. Stay of Proceedings to Enforce Judgment
E. Review and Remand

SECTION 1.4
EXECUTIONS AND GARNISHMENTS

1.4-1 Executions of Judgments
A. Definitions; General
B. Writ of Execution
C. Exemptions
D. Claim of Exemption for Satisfaction of Separate and Community Debts
E. Transcript of Judgment
F. Levy and Sheriff's Sale
G. Renewal of Execution
H. Examinations and Depositions to Aid Execution

1.4-2 Garnishment
A. Definitions; General
B. Types of Garnishment
C. Garnishment in Advance of Execution
D. Garnishment in Aid of Execution of Judgment
E. Garnishment in Aid of Execution of Judgment Entered in Another Court
F. Default Judgment Against Garnishee
G. Release of Garnishment
H. Miscellaneous
I. Appeals on Rulings on Claims of Exemptions

SECTION 1.5
SPECIAL PROCEEDINGS

1.5-1 Attachment
A. Definition
B. Constitutionality
C. Procedures
D. Attachment Service Response
E. Dissolution of Attachment
F. Exemptions from Attachmen
G. Appeals in Attachment

1.5-2 Replevin
A. Definition
B. Complaint; Limits
C. Judgment; Execution

1.5-3 Forcible Entry or Unlawful Detainer
A. Procedure; Complaint
B. Judgment
C. Execution
D. Appeal

1.5-4 Bankruptcy
A. Overview of the Bankruptcy Process
B. Effect of Bankruptcy on Civil Court Cases
C. Effect of Bankruptcy on Criminal Court Cases
D. Effect of Bankruptcy on Collection of Criminal Fees and Fines

SECTION 1.6
LANDLORD-TENANT PROCEEDINGS

1.6-1 Uniform Owner-Resident Relations Act
A. Important Note
B. Coverage; Application of Act
Chart: Obligations of Owner and Resident Under Owner-Resident Relations Act
C. Obligations of the Owner Under the Act
D. Obligations of the Resident Under the Act
E. Types of Actions Allowed Under the Act
Chart Owner Resident Relations Act
Causes of Action
F. Notice
G. Termination of Rental Agreements and Abatement of Rent
H. Actions for Possession
I. Actions for Damages
J. Petition by Owner for Restitution; Petition by Resident for Relief; Summons
K. Judgment; Writ of Restitution
L. Actions for Counterclaim
M. Appeal in Actions for Possession
N. Deposits
O. Disposition of Property Left on Premises

1.6-2 Mobile Home Act
A. Application of Act
B. Conflicts of Law
C. Obligations of Owner
D. Obligations of Tenant
E. Tenancy Requirements, Rental Agreements
F. Termination of Tenancy
G. Action for Termination/Forcible Entry/Detainer
H. Security Agreements/Deposits
I. Alternative Dispute Resolution
J. Conflicts of Law/Mediation

CRIMINAL CHAPTER

SECTION 2.1
MISDEMEANORS: GENERAL; PROCEDURES BEFORE TRIAL

2.1-1 General
A. Definitions
B. Jurisdiction
C. Venue
D. Time Limitations
E. Determination of Present Competency

2.1-2 Complaint; Summons; Arrest Warrant
A. Filing Complaint and Docketing of Action
B. Criminal Summons
C. Arrest without a Warrant
D. Preliminary Rights
E. Probable Cause Determination
F. Detention Hearing for Children
G. Arrest Warrant

2.1-3 Arraignment
A. Definition; General
B. Juveniles in the Magistrate and
Metropolitan Courts
C. Explanation of Rights
D. Representation by Counsel
E. Entry of Plea

2.1-4 Joint and Separate Trials
A. Joinder of Offenses
B. Joinder of Defendants
C. Consolidation
D. Severance; Separate Trials

2.1-5 Jury Trial
A. Right to Jury Trial
B. Exercise or Waiver of the Right to Jury

2.1-6 Dismissal
A. Definitions; General
B. Voluntary Dismissal by Prosecution
C. Dismissal for Failure to Prosecute
D. Refiled Complaints in Metropolitan Court

2.1-7 Sentencing Options
A. Deferral, Suspension and Probation

2.1-8 Other Preliminary Matters
A. Subpoenas
B. Discovery
C. Pretrial Conference
D. Motions
E. Recording of Trial
F. Service and Filing by Facsimile
G. Service and Filing by Electronic Transmission

SECTION 2.2
FELONIES

2.2-1 General
A. Definition
B. Authority of Court

2.2-2 Complaint and Arrest Warrant
A. Filing Complaint and Docketing of Action
B. Issuance of Arrest Warrant
C. Arrest and Return
D. Arrest Followed by Complaint
E. Amendment of Complaints

2.2-3 First Appearance
A. Definition; General
B. Explanation of Rights
C. Representation by Counsel
D. Determination of Indigency
E. Release; Bail
F. Explanation of Preliminary Examination and Grand Jury Indictment Process
G. Dialogue for First Appearance

2.2-4 Fugitive Actions
A. Fugitive Complaint
B. Arraignment and Commitment Hearing
C. Transfer of Actions

SECTION 2.3
MISDEMEANORS: JUDGMENT; SENTENCE; APPEAL

2.3-1 General
A. Judgment and Sentence; Written Orders
B. Right to Appeal

2.3-2 Sentencing
A. Pre-Sentence Report
B. Sentencing Options
C. Sentencing for Hate Crimes
D. Terms and Conditions of a Deferred or Suspended Sentence: Probation
E. Successful Completion of or Violation and Revocation of Probation

2.3-3 Court Costs and Fines
Payment of Court Costs and Fines

2.3-4 Appeal
A. Right, Notice and Docketing of Appeal
B. Transcript of Proceedings
C. Conditions of Release
D. Disposition; Time Limitations

SECTION 2.4
GAME AND FISH VIOLATIONS

2.4 Game and Fish Violations
A. Jurisdiction; Penalties
B. Arrest; Search Warrants; Citations
C. Prosecution

SECTION 2.5
SEARCH AND SEIZURE

2.5-1 Search Warrants
A. General
B. Sufficiency of Affidavit; Probable Cause

2.5-2 Searches Without Warrants
A. General
B. Searches of Persons and Places
C. Searches of Motor Vehicles

2.5-3 Motion to Suppress
A. General
B. Who May File Motion
C. Grounds for Suppression

2.5-4 Gambling: Search and Seizure
A. Affidavit
B. Search Warrant
C. Execution: Arrest

2.5-5 Inspection Orders
A. Administrative Inspection; Defined
B. Application for Inspectorial Search Order
C. Probable Cause for Issuance of Inspection Order
D. Exceptions to Requirement for Inspection Order

SECTION 2.6
RELEASE; BAIL

2.6-1 General
A. Right to Release; Purpose of Conditions
B. Factors to be Considered Prior to
Setting Conditions of Release
C. Conditions of Release to Assure Orderly Administration of Justice
D. Release Proceedings
E. Release Forms
F. Failure to Comply with Conditions of Release
G. Failure to Appear
H. Forfeiture of bail -- exoneration
I. Misdemeanors: Continuation and
Review of Release

2.6-2 Personal Recognizance and Bonds
A. Personal Recognizance
B. Bonds; General
C. Unsecured Appearance Bond
D. Appearance Bond: Cash Deposit.
E. Appearance Bond: 100 Percent Cash Deposit
F. Bail Bond
G. Bail Bond: Discharge of Surety
H. Bonds: Forfeiture

GENERAL CIVIL & CRIMINAL CHAPTER

SECTION 3.1
SUBPOENAS

3.1 Subpoenas
A. General
B. Issuance; General Rules
C. Service of Subpoena
D. Motion to Quash Subpoena
E. Failure of Appear

SECTION 3.2
JURY SELECTION AND TRIALS

3.2-1 Calling of Prospective Jurors
A. General
B. Request for Qualified Jurors
C. Excusing
D. Jury Costs

3.2-2 Trials General

3.2-3 Calling the Cause
A. Start of Trial
B. Readiness to Proceed with Trial
C. Motion to Quash Jury Array
Appendix
UJI Civil 13-106 7
UJI Criminal 14-101 10

3.2-4 Selection of Jury
A. Calling Jurors
B. Voir Dire: General
C. Challenges for Cause
D. Drawing Names
E. Peremptory Challenges
F. Additional Jurors
G. General
Appendix
   Voir Dire Instructions in Civil Cases
   Voir Dire Instructions in Criminal Cases

3.2-5 Oath to Jurors; Preliminary Instructions
A. Oath
B. Preliminary Instructions
C. Opening statement -- UJI Civil 13-108
Appendix
   Preliminary Instructions in Civil Cases
   Preliminary Instructions in Criminal Cases

3.2-6 Witness Oath; Exclusion Rules; Opening Statements
A. Witness Oath
B. Exclusion Rule
C. Opening Statements

3.2-7 Presentation of Evidence
A. Order of Presentation
B. Witnesses: Testimony
C. Defendant as Witness
D. Introduction of Documentary Evidence and Other Things
E. Objections
F. Confessions

3.2-8 Rules of Evidence
A. Overview
B. Application of the Rules of Evidence
C. Construction of the Rules of Evidence
D. General Principles of Evidence
E. Relevancy
F. Evidence on Specific Topics
G. Witness Testimony
H. Hearsay
I. Privileges

3.2-9 Instructions to Jury
A. General
B. Instructions in Criminal Cases
C. Instructions in Civil Cases
D. Requested Instructions

3.2-10 Closing Arguments
A. Definition
B. Order of Presentation

3.2-11 Jury Deliberation; Verdict; Trial by Court
A. Deliberation
B. Procedure When Jury Reaches Verdict
C. Failure of Jury to Reach Verdict
D. Trial by Court: Nonjury Trials

3.2-12 Motions for Directed Verdict or Dismissal During Trial
A. Motion for Directed Verdict
B. Motions for Dismissal

3.2-13 Motion for New Trial

3.2-14 Preservation and Disposition of Exhibits
A. Preservation
B. Return to Court for Appeal
C. Final Disposition

SECTION 3.3
BENCH WARRANT

3.3 Bench Warrant
A. General
B. Issuance
C. Execution; Return
D. Grounds for Issuing Bench Warrant

SECTION 3.4
CONTEMPT

3.4 Contempt
A. General; Definitions
B. Direct Contempt
C. Indirect Contempt
D. Notice
E. Hearing
F. Punishment; Appeal

SECTION 3.5
EXCUSAL, RECUSAL, INABILITY TO PROCEED

3.5-1 Excusal, Recusal, Inability to Proceed
A. Excusal
B. Recusal
C. Inability of a Judge to Proceed
D. Procedure for Replacing a Judge Upon Excusal or Recusal - Magistrate Court
E. Procedure for Replacing a Judge Upon Excusal or Recusal - Metropolitan Court

3.5-2 Recording of Proceedings
A. Record
B. Broadcasting and Photographs

SECTION 3.6
EFFECTIVE DATES OF STATUTES AND COURT RULES

3.6 Effective Dates of Statute and Court Rules
A. General
B. Exceptions

2.5-2 Searches Without Warrants

A. General
Searches without warrants generally come to the attention of a judge in the form of motions to suppress evidence made by defendants. See §2.5-3 of this Benchbook regarding motions to suppress.

B. Searches of Persons and Places

1. The legality of a warrantless search depends on whether an exception to the warrant requirement applies. The following are recognized exceptions to the search warrant requirement.
2. Search Incident to a Lawful, Custodial Arrest. An arresting officer may make a valid warrantless search of the person being arrested and that portion of the premises within the arrestee's control. Chimel v. California, 395 U.S. 752 (1969); U.S. v. Robinson, 414 U.S. 218 (1973); New York v. Belton, 453 U.S. 454 (1981)(upholding warrantless search of the passenger compartment of a car in which the defendant had been riding after defendant placed under custodial arrest). But see State v. Kaiser, 91 N.M. 611 (Ct. App. 1978) (search of defendant’s luggage not made incident to lawful arrest when luggage was not within defendant’s immediate control and defendant could not have destroyed evidence or seized a weapon).

   a. The search and seizure will be invalid if the arrest is invalid. Compare Michigan v. De Fillippo, 443 U.S. 31 (1979).

   b. The arrest must be made before the search.

   c. The search should be made immediately after the arrest.

   d. An arrest is not valid if it is merely used as an excuse to search a person or place.

   e. A warrantless arrest is valid if based upon probable cause to believe a crime has been committed by the person arrested. Probable cause may be established by information obtained from an unidentified informant as long as the police corroborate the information with other evidence, such as police reports or verification of informant's description. State v. Jones, 96 N.M. 14 (1981).

3. Plain View. If an officer sees contraband or other incriminating evidence in plain view while he or she is conducting a lawful investigation, the officer may seize such property without benefit of a warrant. If the seized property establishes probable cause, the officer may make a warrantless arrest. Coolidge v. New Hampshire, 403 U.S. 443 (1971); Horton v. California,496 U.S. 128 (1990). Seeing contraband in plain view does not constitute a search. However, a warrant is required before a police officer may enter an automobile to seize evidence that is in plain view, unless exigent circumstances or another exception to the warrant requirement exists. State v. Jones, 2002-NMCA-019, 131 N.M. 586.
4. Exigent Circumstances. Premises may be searched without a warrant if exceptional circumstances exist (also known as "exigent" circumstances).

   a. An exigent circumstance is a situation requiring swift action to prevent imminent danger to life or serious damage to property. State v. Copeland, 105 N.M. 27 (Ct. App. 1986).

   b. The claim of an extraordinary situation is measured by the facts known to the officers at the time they are called upon to act.

   c. Imminent escape: This situation is not limited to a chase but also includes those situations where swift action is needed to forestall an escape. State v. Chavez, 98 N.M. 61 (1982). The "imminent escape" emergency justifies a warrantless entry into the residence of a suspect for the purpose of an arrest.

   d. Contraband: An officer may search without a warrant when he or she has good reason to believe that contraband may be immediately removed or destroyed. State v. Ortega, 117 N.M. 160 (1994); State v. Trujillo, 95 N.M. 535 (1981).

   e. Even if a law enforcement officer has legal possession of sealed boxes, the officer may not conduct a warrantless search of the sealed boxes without the presence of exigent circumstances. Walter v. United States, 447 U.S. 649 (1980).

   f. Hot Pursuit. Although “hot pursuit” is often referred to as an exception to the warrant requirement, the fact that officers are in hot pursuit of a defendant does not necessarily justify a warrantless entry and search absent exigent circumstances and a valid purpose for entering. State v. Moore, 92 N.M. 663 (Ct. App. 1979).

5. Consent. A person may voluntarily consent to a search. With voluntary consent the person waives the right to be free from a search without a warrant. State v. Cohen, 103 N.M. 558, 563(1985). Any evidence seized during a consensual search is lawfully seized.

   a. Knowledge of the right to refuse consent is one factor to be taken into account when considering whether a person’s consent was voluntary. Schneckloth v. Bustamonte, 412 U.S. 218 (1973).

   b. The consent must be given voluntarily; that is, the person must not be under duress or be coerced by the officer requesting the search. United States v. Mendenhall, 446 U.S. 544 (1980).

   c. The consent must be clearly and explicitly given. Permission to enter is not permission to search.

   d. The scope of the search is limited to the consent given. State v. Garcia, 199-NMCA-97, 127 N.M. 695.

6. Where two or more people have common use of or joint access to the premises, a relationship to the premises based on right of occupancy, possession of a key to premises, individually owned property on the premises, or community property interests, and where only the consent of one of these people has been given, the search is a valid consensual search, provided that there is no showing that police took the non-consenting defendant's personal property from an area reserved for his or her exclusive use. State v. Hensel, 106 N.M. 8, 10 (Ct. App. 1987); State v. Madrid, 91 N.M. 375 (Ct. App. 1978); State v. Kennedy, 80 N.M. 152 (Ct. App. 1969).
7. A private person who conducts a search for private purposes does not need a search warrant. U.S. v. Andrews, 618 F.2d 646 (10th Cir. 1980). Security searches made by airline employees acting under federal tariff regulations, for example, are private searches and do not require a search warrant.
8. Public school officials may conduct a warrantless search of a student's person if the official has a reasonable suspicion that the student has committed a crime or a violation of school rules or the official has reasonable cause to believe that the search will reveal evidence of the student's violation of school laws or rules. New Jersey v. T.L.O., 469 U.S. 325 (1985); State v. Michael G., 106 N.M. 644, 646 (Ct. App. 1987). But see Kennedy v. Dexter Consol. Sch., 2000-NMSC-25, 129 N.M. 436 (strip-to-undergarments search by school officials of all students in a class without individualized suspicion is an impermissible warrantless search).
   
   a. When police officers conduct a warrantless search of a student without the involvement of school officials, the higher standard of suspicion (probable cause) is required, even if the search occurs on school grounds. State v. Tywayne H., 1997-NMCA-15, 123 N.M. 42. Compare In the Matter of Josue T., 1999-NMCA-115, 128 N.M. 56.
9. Probation Searches. Warrantless searches of probationers (or probationers’ property) by probation officers are permissible when they are supported by reasonable suspicion. Neither probable cause nor exigent circumstances is necessary to justify a warrantless probation search. An officer has reasonable suspicion when he or she is aware of specific articulable facts that, when judged objectively, would lead a reasonable person to believe criminal activity occurred or was occurring. State v. Baca, 2004-NMCA-049, ¶¶43-44, 135 N.M. 490.

C. Searches of Motor Vehicles

1. Probable cause is always needed to search a motor vehicle, whether the vehicle is parked, stopped for a license and registration check, or stopped for an investigation. Carroll v. United States, 267 U.S. 132 (1925); United States v. Ross, 456 U.S. 798 (1982). Because a motor vehicle differs inherently from a residence or office due to its mobility and possibility of movement outside an officer's jurisdiction, a motor vehicle may be searched without a warrant on facts that would not justify a warrantless search of a residence or office.
2. The scope of a warrantless search based on probable cause is no narrower and no broader than what would be authorized by a warrant. United States v. Ross, 456 U.S. 798 (1982), overruling Robbins v. California, 453 U.S. 420 (1981), and modifying Arkansas v. Sanders, 442 U.S. 753 (1979). The scope of a search must be supported by probable cause. If the officer has probable cause to search the automobile for contraband, the officer can search every part of the vehicle, including the trunk, and including all containers and packages, where the contraband might be found. The scope of a warrantless search of an automobile for contraband is not defined by the nature of the container (e.g. luggage or paper bag) in which the contraband is secreted. The scope of the search is defined by the object of the search and the places in which there is probable cause to believe that it may be found.
3. The automobile exception permitting the warrantless search of an automobile for contraband does not apply to a warrantless search of any movable container found in a public place which is believed to be carrying an illicit substance even when the container is placed in a moving vehicle, that is not otherwise believed to be carrying contraband. United States v. Chadwick, 433 U.S. 1 (1977); Arkansas v. Sanders, 442 U.S. 753 (1979).
4. Before a vehicle can be stopped the officer must have an articulable and reasonable suspicion that a motorist is unlicensed, that an automobile is unregistered, or that either vehicle or occupant is otherwise in violation of the law. Delaware v. Prouse, 440 U.S. 648 (1979). The stopping of only certain automobiles and the detaining of the driver in order to check license or registration constitutes an infringement of a person's Fourth Amendment rights. The random stopping of vehicles does not constitute a general roadblock.

   a. Random stopping and detaining constitute a "seizure," though the purpose of the stop is limited and the detention brief. Delaware v. Prouse, 440 U.S. 648 (1979).

   b. Even through an automobile may be subject to governmental regulations, a person operating or traveling in an automobile does not lose his or her reasonable expectation of privacy. State v. Bolton, 111 N.M. 28 (Ct. App. 1990); City of Las Cruces v. Betancourt; 105 N.M. 655 (Ct. App. 1987).

5. For a warrantless search of a vehicle to be valid, there must first be a justifiable reason for stopping it.

   a. An officer may stop a vehicle to lawfully arrest the driver for a violation of the Motor Vehicle Code. State v. Galvan, 90 N.M. 129 (Ct. App. 1977). The vehicle may be searched without a warrant as incidental to an arrest. The existence of a Motor Vehicle Code violation must not be used as an excuse for searching the vehicle for evidence of another crime.

   b. As long as an officer has a reasonable suspicion, not merely a hunch, that a crime has been or is being committed, the officer may stop a vehicle for the purpose of investigating possible criminal activity, even though there is no probable cause to make an arrest. State v. Galvan, 90 N.M. 129 (Ct. App. 1977).
   
   c. Radio dispatches from investigating officers or an eyewitness description of a vehicle at the scene of a crime are valid reasons for making an investigatory stop of a vehicle. State v. Barton, 92 N.M. 118 (Ct. App. 1978).
   
   d. A car being driven erratically near a border patrol checkpoint, where it is common to let illegal aliens out to walk around checkpoint, is sufficient reasonable suspicion to stop the vehicle for investigation. Once stopped, the occupants’ evasive answers to officer’s questions, coupled with the erratic driving, established probable cause to search the vehicle without a search warrant. United States v. Brignoni-Ponce, 422 U.S. 873 (1975); State v. Franco, 94 N.M. 243 (Ct. App. 1980).
   
   e. Roadblocks. An officer has authority to set up general roadblocks for purposes of checking sobriety, licenses and vehicle registrations. The roadblock may not be used as an excuse for searching the vehicle for evidence of crimes other than DWI and license, registration and insurance violations. City of Las Cruces v. Betancourt, 105 N.M. 655 (Ct. App. 1987). In Betancourt, the New Mexico Court of Appeals set forth eight standards for determining the validity of roadblocks and guidelines useful in testing that standard. These guidelines must be used in determining the reasonableness of a roadblock. No one guideline is necessarily controlling as to whether or not a search was reasonable. Those guidelines are as follows:
   
       i. Role of supervisory personnel: The selection of the site and procedures for conducting the roadblock must be made and established by supervisory law enforcement personnel rather than officers in the field. Ideally, the chief of police or other high ranking supervisory officials should make roadblock decisions.
   
       ii. Restrictions on discretion of field officers: For a valid roadblock, it is important that the discretion of field officers be restricted. Automobiles should not be stopped randomly. It would be proper to stop every automobile. Alternatively, the procedural plan may properly include a mathematical selection formula, such as stopping every third automobile, for example. Officer discretion should also be limited when stopping motorists. As nearly as possible, each motorist should be dealt with in precisely the same manner.
   
       iii. Safety: The safety of the motoring public and the field officer should also be given proper consideration. Here, the court should look to safety measures aimed at warning approaching traffic, the degree to which the roadblock causes traffic congestion and whether the roadblock is set up in such a way so as to put the motoring public and officers in unnecessary peril.
   
       iv. Reasonable location:The location of the roadblock is significant in determining the degree of intrusiveness and safety of the public and police. Obviously, a location chosen with the actual intent of stopping and searching only a particular group of people, i.e., Hispanics, African-Americans, etc., would be impermissible.
   
       v. Time and duration: This factor also bears on the intrusiveness and effectiveness of the roadblock. Reasonableness is the standard. For example, sobriety checkpoints established during the late evening hours on a weekend may be reasonable to detect drunk drivers, while continuing the roadblock through Monday morning during rush hour might not be reasonable.
   
       vi. Indicia of official nature of the roadblock: The official nature of the roadblock should be immediately apparent. Officers in the field should be uniformed; police cars should be marked; and warning or stop signs, flares and pylons are advisable. The roadblock scene should strike an appropriate balance between providing high visibility at the roadblock while minimizing the potential fear and apprehension to the public. In addition to being important for safety reasons, these indicia will reassure motorists that the stop is duly authorized.
   
       vii. Length and nature of detention: The average length of time that a motorist is detained at the roadblock and the degree of intrusiveness should be minimized. This will avoid lengthy delays and traffic congestion. Initially, motorists should be detained only long enough to be informed of the purpose of the stop and to look into the vehicle for signs of intoxication. Where facts within the observation of the officer warrant further investigation, the suspected motorist should be asked to pull into a separate testing area so as not to unreasonably inhibit the flow of traffic.
   
        viii. Advance publicity: The deterrence value of any roadblock and its reasonableness for sobriety checks will be enhanced if given widespread advance publicity. See also State v. Clark, 112 N.M. 500, 816 P.2d 1122 (Ct. App. 1991).

6. After a lawful arrest for a Motor Vehicle Code violation, or a lawful stop for a valid license or registration check, or a valid investigatory stop, there is probable cause for a warrantless search of the vehicle if:

   a. The officer sees contraband or other evidence of a crime in plain view. State v. Powell, 99 N.M. 381 (Ct. App. 1983).

   b. The officer smells liquor or marijuana. Or,

   c. The officer observes conduct reasonably related to illegal use of drugs or other criminal activity.

7. In addition, once arrested, the defendant and the defendant’s vehicle may be searched without a warrant as incidental to the arrest.

8. If the stop and/or arrest is initially valid or if the driver gives consent to search and the consent is unlimited in scope, there is no issue of illegal search and any contraband found can be properly seized. United States v. Watson, 423 U.S. 411 (1976); State v. Austin, 91 N.M. 793 (Ct. App. 1978).

9. Generally, if it is practical to obtain a warrant to search a vehicle, a search warrant must be obtained. The following situations illustrate when a warrant should be obtained.

   a. The vehicle is regularly parked in a specific location, like a person's driveway.

   b. The vehicle travels a regular route, for example, a delivery truck.

   c. The vehicle is in a garage for repairs.

   d. Probable cause to search has developed after a vehicle has been impounded. State v. Luna, 93 N.M. 773 (1980).

10. A warrantless inventory search of a vehicle is lawful if the following requirements are met:

    a. the vehicle is in police control and custody;

    b. police custody of the vehicle must be based on some legal ground and there must be some nexus between the arrest and the reason for impounding the vehicle;

    c. the inventory is made pursuant to established police regulations; and

    d. the search is reasonable, that is, it is intended to protect the owner's property or to protect the law enforcement officer from false claims or potential danger.

11. If during a lawful inventory search, evidence of a crime is discovered, the officer should obtain a warrant before seizing the evidence, unless the evidence is contraband. If the evidence discovered is property, the possession of which is prohibited by law, such as drugs or drug paraphernalia, no search warrant is required before seizing the property. State v. Ruffino, 94 N.M. 500 (1980); State v. Foreman, 97 N.M. 583 (Ct. App. 1982).

12. Inventory searches must be limited to the extent necessary to carry out the caretaking function. State v. Boswell, 111 N.M. 240, 244 n.6 (1991). If the vehicle is left out on the road for a lengthy period of time before being taken into custody, a warrantless search is not authorized.

13. An inventory search of defendant's automobile, lawfully parked at the scene of the crime, made after defendant has been arrested and booked, is lawful. State v. Williams, 97 N.M. 634 (1982) The evidence obtained from the parked car will not be suppressed although the only connection between the car, the defendant and the crime is that the defendant is the owner of the car and the keys are found in defendant's possession during booking.

14. Border Searches. Warrantless searches of automobiles crossing an international border (or its functional equivalent) are permissible if the vehicle searched is in the same condition as when the border was actually crossed and the officer has reasonable suspicion that the person or thing searched is involved in some illegal activity. State v. Gonzales, 97 N.M. 182 (Ct. App. 1981).

15. A warrantless search of the automobile belonging to a driver who is providing the defendant with transportation is permissible because the defendant does not have a legitimate expectation of privacy while being transported in an automobile belonging to another. State v. Waggoner, 97 N.M. 73 (Ct. App. 1981).

16. Consent. A search and seizure of property may be valid if the defendant consented to the search. It is for the judge to determine whether the defendant consented to a search. See State v. Grossman, 113 N.M. 316 (Ct. App. 1991) (“Viewed with a presumption against waiver of constitutional rights, the testimony must show that the consent was unequivocal and specific and given without coercion.”).

17. It is also important to determine whether the consenting party had authority to give consent for the items actually searched. In State v. Celusniak, 2004-NMCA-070, 135 N.M. 728, the Court of Appeals held that an officer who obtained valid consent to search a vehicle from the driver exceeded the scope of this consent when he searched a purse left in that vehicle by a passenger.