July 27, 2021- State of New Mexico v. Ricky Anthony Ayon, No. A-1-CA-38812

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
Opinion Number: _____________	2
Filing Date: JULY 27, 2021	3
No. A-1-CA-38812	4
STATE OF NEW MEXICO,	5
Plaintiff-Appellant,	6
v.	7
8
RICKY ANTHONY AYON,	9
Defendant-Appellee.	10
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY	11
Christina P. Argyres, District Judge	12
Hector H. Balderas, Attorney General	13
Santa Fe, NM	14
Meryl Francolini, Assistant Attorney General	15
Albuquerque, NM	16
for Appellant	17
Bennett J. Baur, Chief Public Defender	18
Caitlin C.M. Smith, Assistant Appellate Defender	19
Santa Fe, NM	20
for Appellee	21
Court of Appeals of New Mexico
Filed 7/27/2021 2:07 PM

OPINION	1
BOGARDUS, Judge.	2
{1} 	Defendant Ricky Ayon was charged by criminal information1 with possession	3
of a controlled substance (heroin), pursuant to NMSA 1978, Section 30-31-23 (2011,	4
amended 2021).2 At his preliminary hearing, the district court determined the police	5
officer who arrested Defendant did not have reasonable suspicion to detain him and	6
dismissed the matter without prejudice. The State appeals and argues (1) the district	7
court at a preliminary hearing does not have the authority to determine whether	8
evidence was illegally obtained, and (2) even if it does have this authority,	9
Defendant’s detention was legal and there was sufficient probable cause to bind him	10
over. Concluding that the district court’s authority at a preliminary hearing does not	11
include the authority to determine the illegality of evidence, we reverse.	12
BACKGROUND	13
{2} 	At the preliminary hearing, the arresting officer, Officer Andrew Limon, who	14
was the sole testifying witness, explained he was familiar with Defendant because	15
of previous interactions with him before the night of Defendant’s arrest. Officer	16
1The State refiled this charge in district court after the original charge was
dismissed from metropolitan court because of the arresting officer’s failure to appear
at the preliminary hearing.
2All references to Section 30-31-23 in this opinion are to the 2011 version of
the statute.

2
Limon also testified that the week before this incident, he had searched Defendant’s	1
criminal history and found an active warrant for his arrest.	2
{3} 	When Officer Limon came into contact with Defendant on the night of his	3
arrest, Defendant was carrying groceries while walking his bicycle along the street.	4
Officer Limon called out to Defendant, who walked over to him, and Officer Limon	5
immediately arrested him and placed him in handcuffs, because of Defendant’s	6
attempts to evade arrest in their previous encounters. Once he placed Defendant	7
under arrest, Officer Limon confirmed Defendant’s outstanding arrest warrant.	8
Officer Limon then performed a search incident to arrest and found a small, clear	9
bag containing a black tar-like substance in Defendant’s pocket. Officer Limon	10
conducted a field test and identified the substance as heroin. Defendant’s possession	11
charge followed.	12
{4} 	Defendant argued at the preliminary hearing that Officer Limon had no	13
reasonable suspicion to detain him because he did not confirm the warrant until after	14
Defendant was under arrest and, as a result, probable cause should not be found to	15
bind the case over for trial. The district court found there was no reasonable	16
suspicion to stop Defendant and dismissed the case without prejudice.	17
DISCUSSION	18
{5} 	The State argues that the district court exceeded its authority by considering	19
at the preliminary hearing whether the evidence against Defendant was illegally	20

3
obtained. The State also argues that even if the district court had the authority to	1
determine whether the evidence was illegally obtained, Defendant’s detention was	2
legal, and the evidence presented at the preliminary hearing was sufficient to	3
establish probable cause. 	We conclude that the district court’s authority at a	4
preliminary hearing does not encompass the authority to determine whether evidence	5
was illegally obtained, and we reverse the district court’s dismissal of the charge	6
based on its finding that Officer Limon lacked reasonable suspicion to detain	7
Defendant. Because of our conclusion, we need not address the State’s remaining	8
argument.	9
At a Preliminary Hearing, the District Court Has No Authority to Determine	10
Whether Evidence Was Illegally Obtained	11
{6} 	In this appeal, we are presented with an issue of first impression: whether,	12
under Rule 5-302 NMRA, which governs preliminary hearings, the district court is	13
authorized to exclude illegally obtained evidence. The State’s argument, grounded	14
in the plain language of Rule 5-302 and the narrow purpose of the hearing itself, is	15
that the district court’s authority is limited to determining whether there is probable	16
cause to believe that the defendant has committed a felony, and does not include the	17
authority to determine whether evidence was illegally obtained. Defendant disagrees	18
with the State’s narrow construction of Rule 5-302 and contends that despite the	19
rule’s language, there is nothing in New Mexico law that prohibits the district court	20
from making such a determination at the preliminary hearing stage. Defendant	21

4
further contends that construing Rule 5-302 to authorize the district court to	1
determine whether evidence is illegally obtained is consistent with New Mexico law	2
on preliminary hearings and the exclusionary rule.	3
{7} 	“The proper interpretation of our Rules of Criminal Procedure is a question of	4
law that we review de novo.” Allen v. LeMaster, 2012-NMSC-001, ¶ 11, 267 P.3d	5
806. When interpreting procedural rules, we seek “to determine the underlying	6
intent” of our Supreme Court. State v. Miller, 2008-NMCA-048, ¶ 11, 143 N.M.	7
777, 182 P.3d 158. “In interpreting procedural rules, we apply the same canons of	8
construction as applied to statutes and, therefore, interpret the rules in accordance	9
with their plain meaning.” Rodriguez ex rel. Rodarte v. Sanchez, 2019-NMCA-065,	10
¶ 12, 451 P.3d 105 (internal quotation marks and citation omitted). “We first look to	11
the language of the rule, and if the rule is unambiguous, we give effect to its language	12
and refrain from further interpretation.” Id. (alteration, internal quotation marks, and	13
citation omitted). We examine “the plain language of the rule as well as the context	14
in which it was promulgated, including the history of the rule and the object and	15
purpose[.]” Kipnis v. Jusbasche, 2017-NMSC-006, ¶ 11, 388 P.3d 654 (alteration,	16
internal quotation marks, and citation omitted). Finally, in giving effect to the plain	17
meaning of the rule, we take care to avoid an absurd or unreasonable result. See State	18
v. Marshall, 2004-NMCA-104, ¶ 7, 136 N.M. 240, 96 P.3d 801.	19

5
{8} 	The New Mexico Constitution directs that “[n]o person shall be held to answer	1
for a capital, felonious or infamous crime unless on a presentment or indictment of	2
a grand jury or information filed by a district attorney or attorney general or their	3
deputies[.]” N.M. Const. art. II, § 14. Furthermore, “[n]o person shall be so held on	4
information without having had a preliminary examination before an examining	5
magistrate, or having waived such preliminary examination.” Id. Thus, when a	6
criminal case is commenced by the filing of an information, our Constitution	7
requires that a preliminary hearing be held before an examining court before an	8
accused can be tried for a felony offense.3
9
{9} 	Pursuant to Rule 5-302(D), the district court4 must find either that (1) there is	10
no probable cause that the defendant has committed the felony offense and dismiss	11
the charge without prejudice; or (2) there is probable cause that the defendant	12
committed the offense and bind the defendant over for trial.5 “[T]he state is required	13
to establish, to the satisfaction of the examining [court], two components: (1) that a	14
crime has been committed; and (2) probable cause exists to believe that the person	15
3A preliminary hearing may be held in district court, Rule 5-302, magistrate
court, Rule 6-202 NMRA, or metropolitan court, Rule 7-202 NMRA.
4 The procedural rules for preliminary hearings in district court, magistrate
court, and metropolitan court are substantially the same. See Rule 5-302; Rule 6-
202; Rule 7-202.
5A criminal information may also be dismissed for failure to meet the time
limits laid out in the rule. Rule 5-302(A)(3) (“If a preliminary examination is not
held within the time limits in this rule, the court shall dismiss the case without
prejudice and discharge the defendant.”).

6
charged committed it.” State v. White, 2010-NMCA-043, ¶ 11, 148 N.M. 214, 232	1
P.3d 450. The plain language of Rule 5-302 contains no authorization for the district	2
court to consider whether evidence was illegally obtained at a preliminary hearing.	3
See Rodriguez ex rel. Rodarte, 2019-NMCA-065, ¶ 12.	4
{10} 	Addressing this issue in the context of grand jury proceedings, our Supreme	5
Court held that “absent statutory authorization, a court may not overturn an	6
otherwise 	lawful 	grand 	jury 	indictment 	because 	of 	trial 	inadmissibility 	or	7
improprieties in the procurement of evidence that was considered by the grand jury.”	8
State v. Martinez, 2018-NMSC-031, ¶ 1, 420 P.3d 568. In Martinez, our Supreme	9
Court reviewed an amendment to the Rules of Criminal Procedure that authorized a	10
district 	court 	to 	review 	the 	lawfulness 	of 	evidence 	presented 	at 	grand 	jury	11
proceedings. Id. ¶ 7. The Court directed the applicable rule be revised to omit the	12
authorizing language after determining that no statutory authority existed that	13
provided judicial tribunals the power to perform such a review. Id. ¶¶ 15-32, 38. In	14
reaching its holding, our Supreme Court reviewed the history of judicial review of	15
evidence considered by the grand jury, beginning in 1923, with State v. Chance,	16
1923-NMSC-042, 29 N.M. 34, 221 P. 183, and concluded that our Supreme Court	17
“has consistently honored a strong policy of resisting dismissal of otherwise valid	18
grand jury indictments based on disputes about the source or trial admissibility of	19
the evidence considered by the grand jury.” Martinez, 2018-NMSC-031, ¶ 15.	20

7
{11} 	Given the common purpose between grand jury proceedings and preliminary	1
hearings, we find the reasoning of Martinez persuasive. This Court also finds no	2
specific statutory authority that authorizes a district court to review the illegality of	3
the evidence used to support probable cause at a preliminary hearing. Further, it	4
would create inconsistencies if we were to construe Rule 5-302 to find such authority	5
in light of our Supreme Court’s previous holding that judicial review of the evidence	6
upon which to return an indictment in the context of grand jury proceedings is not	7
authorized. Both proceedings are intended to determine if probable cause exists to	8
indict a criminal suspect for felony charges. See State ex rel. Whitehead v. Vescovi-	9
Dial, 1997-NMCA-126, ¶ 5, 124 N.M. 375, 950 P.2d 818 (stating the primary	10
purpose of preliminary hearings is to evaluate whether the state has met its burden	11
of demonstrating probable cause); see also Buzbee v. Donnelly, 1981-NMSC-097,	12
¶ 16, 96 N.M. 692, 634 P.2d 1244 (stating the responsibilities of the grand jury	13
include determination of probable cause). Different rules regarding the district	14
court’s authority to review illegally obtained evidence based solely on the choice of	15
proceedings—grand jury proceedings as opposed to preliminary hearings—may	16
encourage favoring one proceeding over another, undercutting efficient judicial	17
administration and causing confusion. Based on the foregoing, we disagree with	18
Defendant’s argument that there is statutory authority and precedent that supports a	19

8
conclusion that the district court’s authority at a preliminary hearing includes	1
excluding illegally obtained evidence.	2
{12} 	Our review of the plain language of a rule in order to ascertain the intent of	3
our Supreme Court is also “guided by our review of rules in pari materia.” Miller,	4
2008-NMCA-048, ¶ 11 (internal quotation marks and citation omitted). Thus, we are	5
to read all the provisions of a rule together with other rules relating to the same	6
subject matter to ascertain the intent of our Supreme Court. See State v. Davis, 2003-	7
NMSC-022, ¶ 12, 134 N.M. 172, 74 P.3d 1064. We note that motions to suppress	8
illegally obtained evidence are specifically provided for in another rule—Rule 5-212	9
NMRA. Rule 5-212 contains no provision for motions to suppress to be heard at	10
preliminary hearings; the rule does not contemplate preliminary hearings in any	11
regard.. The fact that a separate rule exists that specifically allows a defendant to	12
move for suppression of illegally obtained evidence is consistent with the conclusion	13
that the district court’s authority at a preliminary hearing does not include the	14
authority to rule on the illegality of the evidence presented. See State v. Santillanes,	15
2001-NMSC-018, 	¶ 7, 	130 	N.M. 	464, 	27 	P.3d 	456 	(stating 	that 	under 	the	16
general/specific rule of statutory construction, “the more specific statute will prevail	17
over the more general statute absent a clear expression of legislative intent to the	18
contrary”).	19

9
{13} 	Defendant argues that because a preliminary hearing resembles a bench	1
trial,—judges preside over the proceeding, Rule 5-105(A) NMRA, and the district	2
court is bound by the Rules of Evidence, Rule 5-302(B)(5)—it follows that the	3
district court should be allowed to make a determination regarding whether evidence	4
was illegally obtained. Defendant’s contention fails to acknowledge the inherent	5
difficulties presented by the different evidentiary rules applicable to the two	6
proceedings. At a motion to suppress, the district court is not bound by the Rules of	7
Evidence, except for the rules addressing privileges. Rule 11-104(A) NMRA.	8
Conversely, the district court is required to follow the Rules of Evidence at a	9
preliminary hearing. Rule 5-302(B)(5). Applying different evidentiary rules within	10
the same proceedings could cause confusion and create an unreasonable risk of error.	11
See State v. Rowell, 1995-NMSC-079, ¶ 8, 121 N.M. 111, 908 P.2d 1379 (holding	12
that we will not interpret a statute in a way that would render it unreasonable, unjust,	13
or absurd).	14
{14} 	Defendant next argues that a district court’s reliance upon inadmissible	15
evidence undercuts the screening function of the preliminary hearing, therefore,	16
construing Rule 5-302 to encompass a district court’s authority to determine whether	17
evidence was illegally obtained would further the preliminary hearing’s purpose. We	18
disagree. “The primary purpose of the preliminary examination is to provide an	19
independent evaluation of whether the state has met its burden of demonstrating	20

10
probable cause.” Vescovi-Dial, 1997-NMCA-126, ¶ 5. “The [s]tate is only required	1
to produce evidence sufficient to establish reasonable grounds for the [district	2
court]’s exercise of judgment.” State v. Vallejos, 1979-NMCA-089, ¶ 12, 93 N.M.	3
387, 600 P.2d 839. A finding of probable cause based on illegally obtained evidence	4
will not necessarily force a defendant to trial on “incompetent evidence” because a	5
motion to suppress can be used to “exclude the evidence and thereby preclude a	6
trial[.]” 4 Wayne R. LaFave, et al., Criminal Procedure § 14.4(b) (4th ed. 2020).	7
Thus, “allowing the defense to raise the suppression issue before the [district court]	8
is viewed as unnecessary to achieving effective screening.” Id. Given that the	9
primary purpose of the preliminary hearing is the determination of probable cause,	10
rather than the consideration of the nature of the evidence, we believe that our	11
holding is consistent with the preliminary hearing’s purpose.	12
{15} 	Moreover, construing a district court’s authority at the preliminary hearing to	13
include consideration of whether evidence was illegally obtained would encourage	14
mini-trials on evidentiary issues, which, again, is inconsistent with efficient judicial	15
administration and economy. See State v. Lopez, 2013-NMSC-047, ¶ 20, 314 P.3d	16
236 (noting that “[t]he preliminary hearing is not intended to be a mini-trial”). Two	17
determinations of admissibility could occur, one at the preliminary hearing and	18
another before trial, which would increase the number of pretrial motions and strain	19
judicial resources, counter to the applicable rules’ stated intent. See Rule 5-101(B)	20

11
NMRA (mandating that the Rules of Criminal Procedure for the district court “be	1
construed to secure simplicity in procedure, fairness in administration and the	2
elimination of unjustifiable expense and delay”).	3
{16} 	We further note that preliminary hearings are held on an accelerated timeline,	4
particularly if the defendant is in custody. Rule 5-302(A)(1) (explaining timing	5
requirements for scheduling a preliminary hearing). If district courts are to evaluate	6
whether evidence was illegally obtained at these hearings, “there often will not be	7
adequate time for the two sides to investigate and prepare for exclusionary rule	8
objections.” 4 LaFave, supra, § 14.4(b). Inadequate time to develop arguments about	9
illegally 	obtained 	evidence 	could 	result 	in 	district 	courts 	having 	to 	make	10
insufficiently informed rulings based on undeveloped arguments.	11
{17} 	We conclude the Rules of Criminal Procedure do not provide authority for a	12
district court to determine whether evidence was illegally obtained at a preliminary	13
hearing. The dismissal of the criminal information based on such a determination	14
was in error.	15
CONCLUSION	16
{18} 	For the foregoing reasons, we reverse and remand for further proceedings	17
consistent with this opinion.	18

12
{19} 	IT IS SO ORDERED.	1
____________________________	2
KRISTINA BOGARDUS, Judge	3
WE CONCUR:	4
___________________________________	5
BRIANA H. ZAMORA, Judge	6
___________________________________	7
SHAMMARA H. HENDERSON, Judge	8