Rule 5-212 Motion to suppress.

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, 1973-NMCA-059, 85 N.M. 118, 509 P.2d 885, and State v. Torres, 1970-NMCA-017, 81 N.M. 521, 469 P.2d 166.

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, 1970-NMCA-025, 81 N.M. 324, 466 P.2d 890 (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 suppressible evidence during the course of the trial. If good cause is shown, the judge may excuse the late filing and hold a hearing under 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.

If a defendant raises a motion before trial, the court should endeavor to resolve such motion at least five (5) days prior to trial in order to permit the parties to negotiate resolution via plea consistent with Rule 5-304 NMRA.

At a hearing on a motion to suppress, the Rules of Evidence, except for the rules on privileges, do not apply. See Rule 11-104(A) NMRA and Rule 11-1101(D)(1) NMRA. For example, hearsay evidence is admissible. United States v. Matlock, 415 U.S. 164 (1974).