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

2.5-3 Motion to Suppress

A. General

1. In a case involving a misdemeanor or petty misdemeanor charge, a person aggrieved by a search and seizure may move for the return of the property and to suppress the use of the property as evidence. Magis. Ct. R. 6-304(C); Metro. Ct. R. 7-304(C).
2. A judge may hear and decide a motion to suppress only if the search and seizure was in connection with a misdemeanor or petty misdemeanor case; in felony cases, the motion must be filed in district court (because the magistrate and metropolitan courts have no jurisdiction to hear the merits of a felony case). Magis. Ct. R. 6-304(C); Metro. Ct. R. 7-304(C); see also §2.2 of this Benchbook regarding the role of the court in felony cases.
3. At a hearing on a motion to suppress, the judge may receive evidence on any fact related to the motion. Hearsay is admissible. Evidence Rules 11-1101(D)(1) and 11-104(A).
4. A defendant's testimony at a hearing on a motion to suppress cannot be used as substantive evidence against the defendant at trial, unless it is used to impeach his or her own testimony at trial. Simmons v. United States, 390 U.S. 377 (1968).
5. In cases where the search and seizure were without a warrant and a motion to suppress is made, the prosecution has the burden of proving by a preponderance of the evidence that circumstances existed that justified the officers' action. Illinois v. McArthur, 531 U.S. 326, 338 (2001) (Souter, J., concurring) (quoting 5 W. La Fave, Search and Seizure §11.2(b), p. 38 (3d ed. 1996)); see also §2.5-2 of this Benchbook regarding warrantless searches.
6. If, after a hearing, the judge grants a motion to suppress, the property is returned unless otherwise subject to lawful detention.
7. Under the Sixth Amendment, if the accused objects to the closing of a suppression hearing to the public, then the closing must meet the following tests:

   a. The party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced;

   b. The closure must be no broader than necessary to protect that interest;

   c. The trial court must consider reasonable alternatives to closing the hearing to the public; and

   d. The trial court must make findings that adequately support the closure and must retain a transcript of the proceedings. Waller v. Georgia, 467 U.S. 39 (1984).

B. Who May File Motion

1. Filing a motion to suppress the use of seized property as evidence is to challenge the legality of the search and seizure. Not everyone who claims an illegal search and seizure has a right to challenge it. U.S. Const. amend. IV; N.M. Const. art II, §10; Rakas v. Illinois, 439 U.S. 128 (1978); United States v. Salvucci, 448 U.S. 83 (1980); State v. Ellis, 88 N.M. 90 (Ct. App. 1975), overruled on other grounds by State v. Espinosa, 107 N.M. 293 (1988).
2. The constitutional right to privacy--the right for a person to be secure from unreasonable searches and seizures of his person, papers, home and effects--is a personal right. Therefore, only a person whose right to privacy has been infringed by a search and seizure has the right to challenge the search and seizure. State v. Ellis, 88 N.M. 90 (Ct. App. 1975), overruled on other grounds by State v. Espinosa, 107 N.M. 293 (1988).
3. Property ownership or possession is a factor to be considered, but it is not a substitute for a factual finding that the owner or possessor had a legitimate expectation of privacy in the area searched. Nor is it a substitute for the resulting legal conclusion that the person's Fourth Amendment rights were violated. United States v. Salvucci, 448 U.S. 83 (1980); Rakas v. Illinois, 439 U.S. 128 (1978). For example, passengers in a borrowed automobile who can show no legitimate expectation of privacy in the glove compartment or the area under the seat cannot challenge the seizure of property belonging to another found in these areas.
4. A person using a public telephone booth has a right to privacy and his telephone conversations cannot be "bugged" without the police officer first obtaining an order from the court. Katz v. United States, 389 U.S. 347 (1967).
5. The monitoring of the signal of an electronic beeper placed in a container of chemicals that was being transported in a vehicle to the owner's cabin did not invade any legitimate expectation of privacy. United States v. Knotts, 460 U.S. 276 (1983). Therefore, the monitoring of the signal was not a "search" and the confiscation of the unlawful chemicals was not a "seizure" under the Fourth Amendment.
6. In cases in which the judge has jurisdiction, the judge should deny the motion to suppress if he or she determines that the person making the motion had no reasonable expectation of privacy in the area searched. Magis. Ct. R. 6-304(C); Metro. Ct. R. 7-304(C). If the person making the motion to suppress had no legitimate expectation of privacy, then the person's right to privacy under the Fourth Amendment has not been violated.

C. Grounds for Suppression: The Exclusionary Rule (See §2.5-1 and §2.5-2 of this Benchbook regarding affidavits, search warrants, and execution of search warrants.)

1. The exclusionary rule prevents the use of illegally obtained evidence in a criminal trial. Weeks v. United States, 232 U.S. 383 (1914).
2. When a search was made pursuant to a search warrant, and the "good faith" exception to the exclusionary rule does not apply, the following may be grounds for invoking the exclusionary rule and granting a motion to suppress:

   a. The search and seizure were not conducted within the limits and for the reasons stated in the search warrant;

   b. The search and seizure were conducted in an unreasonable manner;

   c. The property obtained was not described in the warrant;

   d. The search was made more than ten days after the warrant was issued;

   e. The search and seizure were conducted between 10:00 p.m. and 6:00 a.m. without having been authorized;

   f. There was no substantial basis established by the affidavit for determining the existence of probable cause;

   g. The affidavit upon which the warrant was based is proved to be false and the falsity is known or should have been known by the affiant; or

   h. The search and seizure were conducted without a warrant and recognized exception to the warrant requirement applies

3. The United States Supreme Court has adopted a "good faith" exception to the exclusionary rule. This exception allows the introduction of evidence seized by police officers who are acting in reasonable reliance upon a search warrant that was issued by a detached and neutral magistrate, but that is ultimately found to be invalid. United States v. Leon, 468 U.S. 897 (1984); Massachusetts v. Sheppard, 468 U.S. 981 (1984). But see State v. Gutierrez, 116 N.M. 431 (1993). Under the New Mexico Constitution, however, there is no good faith exception. According to the New Mexico Supreme Court, the New Mexico Constitution requires exclusion of evidence obtained pursuant to a search warrant that is later found to be invalid. State v. Gutierrez, 116 N.M. 431 (1993).
4. When the search was made without a warrant, the following may be grounds for granting a motion to suppress:

   a. The arrest preceding the search, whether with or without an arrest warrant, was invalid;

   b. The search following the arrest was made too long after the arrest;

   c. The search following the arrest extended beyond that portion of the premises within the arrestee's control;

   d. The circumstances surrounding the warrantless search were not "exigent” or “exceptional," for example, there was no imminent peril to life or limb;

   e. Consent to search was not voluntarily given;

   f. It was practical under the circumstances to obtain a search warrant: or

   g. The initial stop of the motor vehicle was invalid. See §2.5-2 of this Benchbook regarding warrantless searches.

D. Right to Appeal Suppression Decisions

1. There is no right to an interlocutory appeal to the district court of a magistrate or metropolitan court order granting or denying a motion to suppress evidence or a motion in limine. State v. Heinsen, 2004-NMCA-110, ¶14, 136 N.M. 295.
2. Either party may appeal the court’s order granting or denying a motion to suppress once the court issues a final order in the case.