IN THE SUPREME COURT OF THE STATE OF NEW MEXICO 1 Opinion Number: 2
F iling Date: September 5 , 2023 3
NO. S-1- SC
- 38937 4 STATE OF NEW MEXICO, 5 Plaintiff

- Respondent, 6

v. 7 RICKY ANTHONY AYON, 8 Defendant

- Petitioner. 9

ORIGINAL PROCEEDING ON CERTIORARI 10 Christina P. Argyres, District Judge 11
Bennett J. Baur, Chief Public Defender 12 Caitlin C.M. Smith, Assistant Appellate Defender 13 Santa Fe, NM 14 for Petitioner 15 Hector H. Balderas, Attorney General 16 Meryl E. Francolini, Assistant Attorne y Genera l 17 Santa Fe, NM 18
f or Respondent 19
Law Office of Scott M. Davidson 20 Scott M. Davidson 21 Albuquerque , NM 22 The slip opinion is the first version of an opinion released by the Chief Clerk of the Supreme Court. Once an opinion is selected for publication by the Court, it is assigned a vendor-neutral citation by the Chief Clerk for compliance with Rule 23-112 NMRA, authenticated and formally published. The slip opinion may contain deviations from the formal authenticated opinion.Law Office of Jamison Barkley , LLC 1 Jamison Barkley 2 Santa Fe, NM 3 Angelica Hall 4 Albuquerque , NM 5 for Amicus Curiae New Mexico Criminal Defense Lawyers Association 6OPINION 1
THOMSON , Justice. 2
{1} Under the New Mexico Constitution, the s tate can bring felony charges in one 3 of two ways : by presenting charges and evidence to a grand jury composed of lay 4 citizens or to a judge at a preliminary hearing. N.M. Const. art. II, § 14. In State v. 5
Martinez , this Court held that a district court has no authority to review the 6 admissibility of evi dence considered by a grand jury. 2018

- NMSC

- 031, ¶ ¶ 1, 39, 7 420 P.3d 568. This case requires us to make an analogous determination in the 8 context of a Rule 5

- 302 NMRA 1 preliminary examination (hereinafter “preliminary 9 hearing”). We hold that a district court judge presiding over a preliminary hearing 10 has no authority to decide whether evidence was obtained from an unconstitutional 11 search or seizure. 12
{2} At his preliminary hearing, Defendant Ricky Ayon successfully challenged 13 the legality of the stop that led to the search incident to his arrest, and the district 14 court refused to bind Defendant over for trial on the charge of heroin possession. 15

1 Rule 5

- 302 NMRA (2017), effective for cases pending or filed after December 31, 2017, was in effect for the duration of the district court proceedings that gave rise to this appeal , and this rule has been amended twice since that time. While we have omit ted date parenthetical s in cit ations of this past rule, all references to the rule as it applies to this case reflect its 2017 amendment. Further, our holding in this case is consistent with the 2020 and current 2022 amendments to Rule 5

- 302

.2 The Court of Appeals reversed. Because we agree with the Court of Appeals that the 1 district court exceeded its authority at the preliminary hearing to rule on whether the 2 evidence was obtained from an unconstitutional search or seizure, we affirm and 3 remand for proceedings consistent with this opinion. 4
I. BACKGROUND 5
{3} Defendant was walki ng with a bicycle and groceries on Isleta Boulevard in 6 Albuquerque when a Bernalillo County Sheriff’s Office deputy called out to him by 7

name. When Defendant approached, the deputy immediately handcuffed him. After 8 Defendant was in handcuffs, the deputy checked the National Crime Informatio n 9 Center (NCIC) database and found that Defendant had an active warrant. The deputy 10 placed Defendant under arrest, then searched Defendant and found a small bag of a 11 substanc e that field

- tested as opiates. 12
{4} The State charged Defendant by criminal information with possession of 13 heroin pursuant to NMSA 1978, Section 30

- 31

- 23 (2011, amended 2021). At 14 Defendant’s preliminary hearing, the deputy explained what led to Defendant’s 15 arrest. He testified that he recognized Defendant from past encounters and was aware 16 that Defendant frequented a house that often required the attention of the police. 17 About a week prior to spotting Defendant on the street, the deputy searched the 18 judiciary’s public facing database for warrants on people known to frequent the 193 house, includ ing Defendant. Through that search, the deputy discovered that 1 Defendant had a warrant . T he deputy testified that Defendant was immediately 2 handcuffed because he had run away from the deputy in the past

. At the time the 3 deputy handcuffed Defendant, the deputy did not know whether the warrant was still 4 valid , and he noted that Defendant had n ot been doing anything illegal. 5
{5} As part of his defense at the preliminary hearing, Defendant argued that the 6 deputy lacked reasonable suspicion to stop him because the d eputy handcuffed 7 Defendant before learning that Defendant had an active warrant through the NCIC 8 database. The district court agreed, concluded that “ the search was illegal,” and 9 declined to bind t he case ove r for trial. The portion of the preliminary hear ing 10 devoted to argument on this issue was approximately two

- and

- one - half minutes. 11 Neither party provided authority to establish whether a district court judge presiding 12 over a preliminary hearing has authority to determine whether “the search was 13
il legal,” in effect to decide whether evidence was obtained from an unconstitutional 14 search or seizure. In fact, no authority was cited by either party with reference to the 15 deputy’s stop of Defendant, and the district court cited no authority in explaining its 16 decision. 17
{6} The State appealed , and the Court of Appeals reversed. State v. Ayon , 2022

- 18
NMCA

- 003, ¶ 1, 503 P.3d 405. The Court of Appeals concluded that the district 194 court is without authority to determine at a preliminary hearing whether evidence 1 was obtained illegally. Id. ¶¶ 1, 17. The Court of Appeals was persuaded that the 2 reasoning in Martinez in the context of grand juries is applicable to preliminary 3 hearings , given that both are aimed at a probable cause determination. Id. ¶ 11. It 4 further concluded that no statute or court rule authorizes a district court to rule on 5 the legality of the evidence presented at a preliminary hearing and noted several 6 practical considerations that militate against Defendant’s position. Id. ¶¶ 11

- 13, 15

- 7
16 . 8
{7} We granted Defendant’s petition for certiorari to determine whether the 9 district court has the authority at a preliminary hearing to decide whether evidence 10 was obtained from an unconstitutional search or seizure. 2 11
II. DISCUSSION 12
{8} Defendant contends that the Court of Appeals erred in concluding that the 13 district court has no authority to exclude illegally obtained evidence at a preliminary 14 hearing for three reasons: (1) Martinez does not control the result in this case because 15 there are substantial differences between grand jury proceedings and preliminary 16

2 We do not address whether the district court correctly ruled that the evidence was obtained unconstitutionally because we conclude that the district court exceeded its authority to make that determination at the preliminary hearing.5 hearings; (2) the characteristics of preliminary hearings are such that, on balance, 1 the district court should be allowed to exclude illegally obtained evidence at this 2 stage in the proceeding ; and (3) Article II, Section 10 of the New Mexico 3 Constitution provides the right to exclude illegal evidence at preliminary hearings. 4
{9} We review interpretations of our rules of criminal procedure and questions of 5 constitutional interpretation de novo. Sta te v. Adame , 2020

- NMSC

- 015, ¶ 7, 476 6 P.3d 872; Allen v. LeMaster , 2012

- NMSC

- 001, ¶ 11, 267 P.3d 806. 7
A. The Relationship and Similarities Between Grand Jury Proceedings and 8 Preliminary Hearings Favor Congruent R ules as to the Power to D ecid e 9 if Evidence Was O btained From an Unconstitutional Search or S eizure 10
{10} In Martinez , two defendants filed a motion in district court challenging their 11 grand jury indictment on the ground that unlawful subpoenas were used to obtain 12 information presented to the grand jury. 2018

- NMSC

- 031, ¶¶ 2, 5

- 6. This Court 13 concluded that an otherwise lawful grand jury indictment cannot be overturned 14 “because of trial inadmissibility or improprieties in the procurement of evidence” 15 presented to the grand jury. Id. ¶ 1. Accordingly, stated the M artinez Court, 16 “suppression is a remedy for court determination in pretrial proceedings and is not 17 one the grand jury is either equipped or called upon to decide.” Id. ¶ 31. 18
{11} The State argues that preliminary hearings “ share a common purpose and an 19 identica l function” with grand jury proceedings and that Martinez therefore controls 206 the result in this case. Defendant, arguing to the contrary, points out that the Martinez 1 analysis is deeply rooted in the specific history and development of New Mexico 2 grand jur y practice and concludes that this analysis is inapplicable to preliminary 3 hearings. See Martinez , 2018

- NMSC

- 031, ¶¶ 15

- 25 (reviewing statutory and 4 precedential history specific to grand juries). Defendant further argues that Martinez 5 is inapplicable becau se preliminary hearings and grand juries “are different 6 proceedings with entirely different structures.” 7
{12} The structure of a preliminary hearing is indeed very different from that of a 8 grand jury proceeding. At a preliminary hearing, for example, the judge substantially 9 controls the procedure , playing a much more prominent role than the judge at a grand 10 jury proceeding

. See generally Rule 5

- 302 (detailing time requirements and 11 procedures administer ed by the district court judge) . At a grand jury proceeding, the 12 prosecutor is largely in control. See Herrera v. Sanchez , 2014

- NMSC

- 018, ¶ 15, 328 13 P.3d 1176 (“The grand jury sits without direct supervision from the grand jury judge 14 and fulfills its constitutional responsibilities with help from a prosecuting 15 attorney.”). At a preliminary hearing, the judge decides whether the s tate has 16 demonstrated probable cause. Rule 5

- 302(D). But at a grand jury proceeding, a panel 17 of “regular jurors” decides. NMSA 1978, § 31 -6- 1 (1983) (stating that at a grand 18 jury proceeding all deliberations are conducted by jurors). Moreover, the rules of 197 evidenc e do not apply at a grand jury proceeding, NMSA 1978, § 31 -6- 11(A) (2003), 1 but are applicable at a preliminary hearing subject to limited exceptions, Rule 5

- 2 302(B)(5); see Rule 5- 302.1 (Exceptions to rules of evidence for preliminary 3 examinations ). 4
{13} T he rig hts of the target of a grand jury proceeding are more limited than the 5 rights of a defendant at a preliminary hearing. Cf. Herrera , 2014

- NMSC

- 018, ¶ 16. 6 The grand jury target and counsel for the target can be present only if the target 7 testifies, and only during that testimony

. Id. ; see also § 31 -6-4(B)- (D) (2003)

. 8 Moreover, the target’s counsel may not speak to the grand jury

. Herrera , 2014

- 9
NMSC

- 018, ¶ 16; see also NMSA 1978, § 31 -6- 4(D). But at a preliminary hearing, 10 “the defendant is permitted to be present with counsel throughout the duration of the 11 proceedings, to cross

- examine the S tate’s witnesses, and to call and subp oena 12 witnesses on the defendant’s own behalf.” Herrera , 2014

- NMSC

- 018, ¶ 16 (citing 13 generally Rule 5

- 302). 14
{14} “ Grand jury proceedings are conducted in secret, ” Herrera , 2014

- NMSC

- 018, 15 ¶ 16 (citing § 31 -6-4(B)- (D)), and are inquisitorial , Martinez , 2018

- NMSC

- 031, 16 ¶ 17 . P reliminary hearings are adversarial in nature , Herrera , 2014

- NMSC

- 018, 17 ¶ 16, and open to the public , NMSA 1978, § 34 -1- 1 (1972); Rule 5

- 124(A) NMRA. 188 The aforementioned differences, among others, lead us to conclude that the grand 1 jury analysis in Martinez does not control the result in this case. 2
{15} Nev ertheless, fundamental similarities between grand jury proceedings and 3 preliminary hearings favor our conclusion that the ir rules on the exclusion of 4 illegally obtained evidence should be congruent. 5
{16} Despite their differences, grand juries and preliminary hearings are directl y 6

r elated. A defendant in New Mexico cannot be made to answer for a serious criminal 7 offense unless there has first been a determination of probable cause by a grand jury 8 or a judge at a preliminary hearing. State v. Lopez , 2013

- NMSC

- 04 7, ¶ 2, 314 P.3d 9 236; see also N.M. Const. art. II , § 14. The s tate chooses between these alternatives. 10 State v. Peavler , 1975

- NMSC

- 035, ¶ 6, 88 N.M. 125, 537 P.2d 1387. And, as already 11 stated, a district court cannot review the admissibility of evidence presented to the 12 grand jury. See Martinez , 2018

- NMSC

- 031, ¶ 39. Therefore, providing an avenue 13 for defendants to bring suppression actions in a preliminary hearing would 14 incentivize the s tate to proceed by grand jury indictment rather than prelimi nary 15 hearing. See Fed. R. Crim. P. 5.1 advisory committee notes (stating that “the 16 preliminary examination is not the proper place to raise the issue of illegally obtained 17 evidence” because “[o]therwise there will be increased pressure on [prosecutors] to 18 abandon the preliminary examination in favor of the grand jury indictment”). We 199 acknowledge that the differences between grand jury proceedings and preliminary 1 hearings may already incentivize one over the other in certain situations. See 2 Kathryn D. Sears, Better Balance: Why the Second Judicial District in New Mexico 3 Should Prioritize Use of Preliminary Hearings , 51 N.M. L. Rev 524, 53 8 (2021) 4 (stating that for some cases a grand jury proceeding, where the rules of evidence do 5 not apply, presents a “much s impler” way to bring felony charges). W e are not 6 inclined to add further imbalance between these two related alternatives for probable 7 cause findings. 8
{17} Preliminary hearings and grand jury proceedings are not only related but are 9 similar in at least two fundamental ways. They share a common primary purpose: to 10 provide a neutral evaluation of whether the s tate has met its burden of demonstrating 11 probable cause to prosecute a serious crime. See State ex rel. Whitehead v. Vescovi

12 Dial , 1997

- NMCA

- 126 , ¶ 5, 124 N. M. 375, 950 P.2d 818 (“The primary purpose of 13 the preliminary examination is to provide an independent evaluation of whether the 14 state has met its burden of demonstrating probable cause.”); Herrera , 2014

- NMSC

15 018, ¶ 15 (stating that one of two primary functions of a grand jury is to “determine 16 whether there is probable cause to believe that the target of an investigation has 17 committed a crime”). And there is a significant procedural similarity: in Lopez we 18 noted that both are nontrial, preliminary proceedings at the threshold of criminal 1910 prosecution at which guilt or innocence is not definitively determined. Lopez , 2013

- 1
NMSC

- 047, ¶¶ 18

- 19

. 2
{18} In sum, Martinez does not control the result in this case. However, the 3 fundamental similarities between grand jury proceedings and preliminary hearings 4 support our adoption of congruent rules for both proceedings regarding the district 5
courts’ power to determine whether evidence was obtained from an unconstitutional 6 search or seizure. 7
B. Prud ential Considerations Also Favor Our Conclusion That the District 8 Court Lacks the Power to Decide at a Preliminary Hearing Whether 9 Evidence Was Obtained From an Unconstitutional Search or S eizure 10
{19} According to Defendant, the prudential concerns raised by the Court of 11 Appeals should not dissuade us from conclud ing that preliminary hearings are an 12 appropriate stage to raise concerns about whether evidence was unlawfully obtained. 13 Defendant argues that the district court should have the authority in any proceeding 14 to evaluate whether evidence was illegally obtained because such authority is 15 consistent with the judge’s role at a preliminary hearing. Defendant emphasi zes that 16 the rules of evidence generally apply at a preliminary hearing. See Rule 5 -302(B)(5). 17 Accordingly, notes Defendant, judges at preliminary hearings already adjudicat e and 18 screen evidentiary issues including, for example , h earsay and privileged mate rial. 19 See, e.g. , Rule 11

- 802 NMRA (establishing, pursuant to our rules of evidence, that 2011 hearsa y is generally not admissible). Defendant concludes that courts “routinely” 1 address evidentiary issues at preliminary hearings, and therefore “[i]t is not clear [to 2 Defendant] why ruling on search

- and

- seizure claims would be more onerous for a 3 district court than addressing ” these other issues. 4
{20} It is true that district courts already adjudicate evidentiary issues, but in our 5 view there is much more to consider. Pr eliminary hearings take place on a brisk 6 timeline, especially when the defendant is incarcerated. See Rule 5

- 302(A)(1) 7 (providing for a ten

- day time limit to hold a preliminary hearing if a defendant is in 8 custody, and a sixty

- day time limit otherwise). Ac tions to suppress evidence are not 9 well

- suited to such a tight timeline. Discovery is in its early stages, and it is limited 10 by rule to the evidence in the s tate’s possession. Rule 5

- 302(B)(2). There is no 11 provision for briefing in the preliminary hearing rule, so both the facts and the 12 arguments about whether evidence was illegally obtained are likely to be 13 underdeveloped. The result can be insufficiently informed rulings. See 4 Wayne R. 14 LaFave, et al., Criminal Procedure § 14.4(b) , at 392 ( 4th ed. 2015 ) ( “I n jurisdictions 15 where the [ preliminary ] hearing is held with exceptional promptness,

. . . there often 16 will not be adequate time for the two sides to investigate and prepare .”). 17
{21} Defendant asserts that the district court was able to handle the suppression 18 claim efficiently , noting that the preliminary hearing was only twenty

- two minutes 1912 long. However, preliminary hearing suppression decisions would be subject to 1 appeal. See NMSA 1978, § 39 -3-3(B) (1972) (providing that the s tate can appeal 2 order s suppressing evidence, excluding evidence, and dismissing a criminal 3 information or indictment); § 39 -3- 3(A)(3) (providing an avenue for a defendant to 4 bring an interlocutory appeal under limited circumstances). And such appeals can 5 delay trials significa ntly. For example , Defendant’s preliminary hearing too k place 6 more than three years ago. 7
{22} Rule 5

- 212 NMRA, which provides the procedure for district court moti ons 8
to suppress evidence, is significant here for several reasons. We note first that the 9 procedur e we have established in Rule 5

- 212 is more conducive to a full and fair 10 hearing on suppression issues because the time constraints are considerably more 11 relaxed, discovery is far more robust, and the rule explicitly provides for written 12 motions. See Rule 5- 212(C) (establishing that a motion to suppress must be filed at 13 least sixty days before trial absent good cause shown); Rule 5

- 302(B)(2) (limiting 14 discovery at the preliminary hearing to the evidence in the s tate’s possession); see 15 also Rule 5

- 601 NMRA ( establishing rules for motions at the trial stage of a criminal 16 case in district court). Defendant’s case illustrates the severe limitations of the 17 preliminary hearing relative to our procedure for motions to suppress : n o law was 1813 cited by either party in the two

- minute suppression argument at the preliminary 1 hearing, and no law was cited by the district court to explain its ruling. 2
{23} Also important is that the rules of evidence generally apply at a Rule 5

- 302 3
pr eliminary hearing but generally do not at a Rule 5- 212 suppression hearing. 4 Compare Rule 5

- 302(B)(5) (“The Rules of Evidence apply [at a preliminary 5 hearing], subject to any specific exceptions in the Rules of Criminal Procedure for 6 the District Courts.”) , with State v. Rivera , 2008

- NMSC

- 056, ¶ 15, 144 N.M. 836, 7 192 P.3d 1213 (“At a suppression hearing, the court may rely on hearsay and other 8 evidence, even though that evidence would not be admissible at trial.” (internal 9 quotation marks and citation omitted ) ). As expressed in ou r rules of evidence , judges 10 have the flexibility to consider evidence not admissible at trial in deciding 11 suppression issues. See Rule 11

- 104(A); cf. United States v. Matlock , 415 U.S. 164, 12 175 (1974) (“[I]n proceedings where the judge himself is consideri ng the 13 admissibility of evidence, the exclusionary rules, aside from rules of privilege, 14 should not be applicable; and the judge should receive the evidence and give it such 15 weight as his judgment and experience counsel.”). 16
{24} Finally, and crucially, the avai lability of a Rule 5

- 212 suppression acti on 17 already provides defendants with a pretrial opportunity to exclude inadmissible 18 evidence and to avoid going to trial on the basis of inadmissible evidence. The trial 1914 is “the only point at which guilt or innocence may be definitively determined,” and 1 a number of other important procedural protections applicable at trial are 2 inapplicable at the preliminary hearing stage of a prosecution: the right to be free 3 from double jeopardy, the right to confrontation, and the right to a jury as factfinder. 4 Lopez , 2013

- NMSC

- 047, ¶¶ 2, 18 (emphasis added). We are mindful of the 5 advantage to the defendant to be unburdened from a nonviable prosecution at the 6 earliest possible point. Cf. Vescovi

- Dial , 1997

- NMCA

- 126 ¶ 6 (“[A] prelimi nary 7 examination operates as a screening device to prevent hasty and unwise prosecutions 8 and to save an innocent accused from the humiliation and anxiety of a public 9 prosecution.” (citing 2 Wayne R. LaFave & Jerold H. Israel, Criminal Procedure 10 § 14.1(a) (1984))). But to allow a defendant to raise suppression issues at the 11 preliminary hearing is largely duplicative and not necessary for effective screening. 12
See 1 Wayne R. LaFave, Search and Seizure § 1.6(d) (6th ed. 2020 ) (stating that 13 among the practical o bjections to allowing defendants to raise suppression issues at 14 preliminary hearings is that doing so “ ‘ would require two determinations of 15 admissibility ’” (quoting Fed. R. Crim. P. 5.1 advisory committee note s) ); 4 LaFave, 16
supra , § 14.4(b) , at 392 (“ [A] ll owing the defense to raise the suppression issue [at a 17 pretrial hearing] is viewed as unnecessary to achieving effective screening” because 18

a “ suppression motion can still be utilized to gain a pretrial ruling that will exclude 1915 the evidence and thereby preclude a trial”); id. at 390 (“Like all evidentiary rulings 1 at a preliminary hearing, the ruling on a challenge to evidence as illegally acquire d 2 will not be binding upon the trial court.”). To adopt Defendant’s position , this Court 3 would risk turning preliminary hearings into minitrials on the legality of the 4 evidence. Cf. Lopez , 2013

- NMSC

- 047, ¶ 24 (concluding that it was “unworkable” 5 to provide confrontation rights at all stages of a criminal proceeding, including 6 preliminary hearings). We decline Defendant’s invitation

. 7
{25} We pause here to address one additional concern raised by Defendant. 8 Defendant argues that if the district court considers ill egally obtained evidence at a 9 preliminary hearing, the judge “participate[s] in the violation of the defendant’s 10 rights” and, quoting State v. Gutierrez , 1993

- NMSC

- 062, ¶ 56, 116 N.M. 431, 863 11 P.2d 1052, becomes an “accomplice[] to uncon stitutional executive conduct.” 12 Defendant further quotes our caution in Gutierrez that “[t]he real and perceived 13 affront to the integrity of the New Mexico judiciary is a critical state interest that 14 militates in favor of the exclusionary rule.” Id. In the context of a preli minary 15 hearing, w e think Defendant is incorrect. 16
{26} In Gutierrez, this Court rejected the use of illegally obtained evidence at trial 17 as contrary to the New Mexico Constitution. Gutierrez , 1993

- NMSC

- 062, ¶ 56. Our 18 opinion does not alter or undermine t he Gutie rrez trial stage protections. And the 1916 use of illegal evidence for the ultimate determination of guilt or innocence has very 1 different implications than the use of such evidence at a preliminary hearing because 2 the later protections of Defendant’s right to exclude illegal evidence still exist in full 3 force. Our ruling today does not require district court judges to participate in rights 4 violations, contrary to Defendant’s claim. 5
C. The New Mexico Constitution Does Not Provide the R ight at a 6 Pr eliminary H earing to Exclude E vidence Obtained From an 7 U nconstitutional Search or S eizure 8
{27} Defendant’s constitutional argument is somewhat tentative: arguing under 9 Article II, Section 10 of the New Mexico Constitution, Defendant states that “New 10 Mexico’s law on the exclusionary rule strongly suggests that it attaches at the 11 preliminary hearing stage.” (E mphasis added .) We take Defendant’s argument to be 12 that Article II, Section 10 provides defendants with the right to exclude illegally 13 obtained ev idence at preliminary hearings. 14
{28} When analyzing a claim of right under the New Mexico Constitution, we 15 apply the interstitial approach. State v. Gomez , 1997

- NMSC

- 006, ¶ 21, 122 N.M. 16 777, 932 P.2d 1. “Under the interstitial approach, the court asks first whether the 17 right being asserted is protected under the federal constitution. If it is, then the state 18 constitutional claim is not reached. If it is not, then the state constitution is 19 examined.” Id. ¶ 19. The state c onstitution may provide additional protections “for 2017 three reasons: a flawed federal analysis, structural differences between state and 1 federal government, or distinctive state characteristics.” Id. 2
{29} Befo re addressing Defendant’s specific arguments, we note three points. First, 3 Defendant asserts that there is no “clear authority on whether the Fourth Amendment 4 exclusionary rule applies at a preliminary hearing.” We disagree. There clearly is no 5 federal rig ht to exclude illegally obtained evidence at a preliminary hearing

. See Fed. 6
R. C rim. P. 5.1(e) (“At the prelimina ry hearing, the defendant

. . . may not object to 7 evidence on the ground that it was unlawfully acquired.”); see also Giordenello v. 8 United St ates , 357 U.S. 480, 484 (1958) (holding that the court was without power 9 at preliminary hearing to determine the admissibility of heroin taken from the 10 defendant’s person). Second, Lopez shows that not all constitutional rights are 11 available at a prelimina ry hearing. 2013

- NMSC

- 047, ¶ 26 (“[T] he right of 12 confrontation

. . . is a trial right that does not apply to probable cause determinations 13 in preliminary examinations

. ”). Third, Martinez shows that there is no broad right to 14 suppress evidence at the probable cause stage under the New Mexico Constitution. 15
See 2018

- NMSC

- 031, ¶¶ 22, 39. In light of these three considerations, Defendant 16 has a narrow path to walk. 17
{30} Because the Fourth Amendment does not protect the right that Defendant 18 asserts, we examine Article II, Section 10. Defendant does not appear to argue that 1918 Article II, Section 10 should be read more expansively than the Fourth Amendment 1 because the federal analysis is flawed or that th ere are structural differences between 2 state and federal government. Instead, we understand Defendant to argue that New 3 Mexico has distinct state characteristics in that (1) Article II, Section 10 provides a 4 substantive right to the exclusion of illegally obtained evidence as recognized in 5
State v. Gutierrez , 1993

- NMSC

- 062; (2) Gutierrez states “that the New Mexico 6 constitutional prohibition against unreasonable searches and seizures requires that 7 we deny the state the use of evidence obtained in violation of Article II, Section 10 8 in a criminal proceeding ,” id. ¶ 45 (emphasis added); and (3) a preliminary h earing 9 is a criminal proceeding

. Amic us Curiae substantially agree s with this argument and 10 add s that failure to exclude illegally obtained evidence at the preliminary hearing 11 stage would “ [c] arv[e] out a procedural ‘free fire zone’ where law enforcement’s 12 violations of the constitution are ignored.” 13
{31} We agree with Defendant and Amic us that there is a salient differenc e 14 between the exclusionary rule in New Mexico and its federal counterpart, in that we 15 have recognized the exclusionary rule as part of the Article II, Section 10 right to be 16 free from u nreasonable search and seizure. Compare Gutierrez , 19 93

- NMSC

- 062, 17 ¶ 50 (“The constitutional right to be free from unreasonable search and seizure 18 includes the exclusionary rule.” (emphasis omitted)) , and id. ¶ 53 (“The approach 1919 we adopt today focuses not on deterrence or judicial integrity, nor do we propose a 1 judicial remedy; instead, our focus is to effectuate in the pending case the 2 constitutional right of the accused to be free from unreasonable search and seizure.”) , 3 with United States v. Calandra , 414 U.S. 338, 34 8 (1974) (holding that “the [federal 4

exc lusionary] rule is a judicially created remedy designed to safeguard Fourth 5 Amendment rights generally through its deterrent effect, rather than a personal 6 constitutional right of the party aggrieved”). We do not retreat from our holding in 7
Gutierrez in th is case. 8
{32} However, the strength of the personal right to the exclusionary rule in New 9 Mexico does not mandate the timing for a suppression motion. The statement in 10
Gutierrez that we must deny the state the use of illegally obtained evidence “in a 11 criminal p roceeding,” must be understood in the larger context of that case. 1993

- 12
NMSC

- 062, ¶ 45

. Gutierrez arose from the district court’s suppression of evidence 13 after a suppression hearing. Id. ¶ 7. N o suppression issue was raised in that case at 14 an earlier stage than the suppression hearing, and therefore Gutierrez cannot be read 15 to require suppression at an earlier stage. See Dominguez v. State , 2015

- NMSC

- 014, 16 ¶ 16, 348 P.3d 183 (“[C]ases are not authority for propositions not considered.” 17 (internal quotation marks and citation omitted)). Moreover, we read Gutierrez ’s 18 requirement for exclusion “in a criminal proceeding” to refer more generally to the 1920 entire criminal case rather than each s eparate pretrial hearing. We expressly stated 1 that “[d]enying the government the fruits of unconstitutional conduct at trial best 2 effectuates the constitutional proscription of unreasonable searches and seizures by 3 preserving the rights of the accused to t he same extent as if the government’s officers 4 had stayed within the law.” Gutierrez , 1993

- NMSC

- 062, ¶ 55 (emphasis added). 5 From that statement, we infer that Gutierrez contemplated exclusion of illegally 6 obtained evidence at the guilt determination stage. 3 See also, e.g. , id. ¶ 51 (noting 7 that, in another case, it was constitutional error to admit illegally obtained evidence 8 “upon the trial” of the defendant (quoting Weeks v. United States , 232 U.S. 383, 398 9 (1914)) ) . Therefore, Defendant’s reliance on Gutierrez is unavailing. Because 10 Defendant does not point to any other distinctive state characteristics, w e are not 11 persuaded that Article II, Section 10 supports the right to exclude illegally obtained 12 evidence at a preliminary hearing 13

3 We leave for another day the question raised by D efendant of whether the e xclusionary rule applies at a preliminary hearing to statements obtained in violation of the Fifth Amendment and/or Article II, Section 15 of the New Mexico Constitution protections against self

- incrimination

. See, e.g. , Vogt v. City of Hays , 844 F.3d 1235, 1241

- 42 (10th Cir. 2017) (holding that statements obtained in violation of the Fifth Amendment must be suppressed at preliminary hearing). This case only requires that we determine whether evidence may be suppressed at a preliminary hearing when the evidence was obtained through an unreasonable search and seizure in violation of Article II, Section 10

.21 D. Response to the D iss ent 1
{33} The dissent contends that the rul ing established today by the majority “ignores 2 a judge’s duty to protect a defendant’s constitutional rights.” Dissent ¶ 67 ; see also 3 dissent ¶ 42 (stating that this Court “fails to acknowledge the fundamental 4 importance of protecting the constitutional rights of the accused”). It does nothing 5 of the sort. The majority opinion simply reserves any question regarding the legality 6 by which the evidence was obtained for a later date than the preliminary hearing 7 when the matt er can be carefully considered. 8
{34} Defendants have an existing pretrial mechanism to vindicate their right to be 9 free from unconstitutional searches and seizures: a motion to suppress. See Rule 5

- 10
212. T oday’s ruling does nothing to diminish this remedy or change the majority’s 11 commitment to protecting the right to be free from unconstitutional search es and 12 seizure s. Although one might not know it from the dissent, the sky has not fallen. A 13 preliminary hearing bindover based on illegally obtained evidence, unlike a bindover 14 based on other ina dmissible evidence ( e.g., hearsay) , will not force the defendant to 15 trial on incompetent evidence. 4 LaFave, supra, § 14.4(b)

. 16
{35} Our federal courts follow the approach established by the majority in thi s 17 opinion. Fed. R. Crim. P. 5.1 (stating that the defen dant may cross

- examine adverse 18 witnesses and may introduce evidence but may not object to evidence on the ground 1922 that it was unlawfully acquired ); s ee also Fed R. Crim. P. 5.1 advisory committee 1
notes (“ [S] ubdivision (a) [of Fed R. Crim. P. Rule 5.1] provi des that the preliminary 2 examination is not the proper place to raise the issue of illegally obtained evidence. 3 This is current law.” (citing Giordenello v. United States , 357 U.S. 480, 484 4 (1958) ) ). And a ccording to a leading commentator, “[t]he majority position refus[es] 5 to allow exclusionary rule objections [at preliminary hearings].” 4 LaFave, supra , 6 § 14.4(b) , at 392 (emphasis added). Thus, the majority of judges across the country , 7 including all of our federal judges, conduct preliminary hearings without addressing 8 the exclusion of illegally obtained evidence. The dissent provides no substantive 9 support for its position that the rul ing announced today , which conforms with the 10 federal practice and the majority of jurisdictions , would result in the judiciary 11 ignoring the ir duty as judges , undermine the very fabric of our legal principles, and 12 compromis e the integrity of our justice system

. S ee dissent ¶¶ 4 5, 67 (“Failing to 13 consider the constitutionality of evidence undermines the very fabric of our legal 14 principles and compromises the integrity of our justice system.”). Instead, they rely 15 on broad rhetoric including heavy reliance on U nited S tates v. Moun D ay , 208 F. 186 16 (D. Kan. 1913), a d istrict of Kansas case dating back to 1913. 17
{36} The essential question answered is whether a defendant’s clear interest in 18 being unburdened from a nonviable prosecution as early as possible , which we 1923 recognize outweighs the jurisp rudential pro blems involved in determining 1 suppression issues at a preliminary hearing

. S ee maj. op. ¶¶ 20

- 22 (noting that 2 preliminary hearings must be held and adjudicated within ten days, discovery is 3 limited to the evidence in the State’s possession, and that the preliminary hearing 4 rule does not provide for briefing). The instant case pointedly illustrates why a 5 preliminary hearing is an inappropriate stage of litigation to consider exclusionary 6 rule objections. 7
{37} In the preliminary hearing in this case, no law was cited to the district court to 8 help determine whether the opiates found in Defendant’s possession were fruit of 9 the poisonous tree and therefore subject to suppression. The dissent quotes the 10 district court’s conclusion that “‘[t]here ’s no reaso nable suspicion to even stop 11 [Defendant]

. . . so [the case] won’t be bound over’” and then states approvingly that 12 “the district court

. . . took into account the constitutionality of the evidence’s 13 procurement, weighed the evidence, and then made a proba ble cause determination.” 14
Dissent ¶ 44 . That said, based on the sparse record developed soon after a filing of 15 the information setting forth the charges, the dissent is ready to rule. 16
{38} However, one unaddressed issue in the district court was whether the 17
att enuation exception to the exclusionary rule applies, given that the officer 18 discovered a valid warrant after the stop. In Utah v. Strieff , the United States 1924 Supreme Court established that the attenuation exception can apply when, after 1 initiating an uncons titutional investigatory stop, an officer discovers a valid arrest 2 warrant and then seizes incriminating evidence during the search incident to the 3 arrest. 579 U.S. 232, 235 (2016). 4 Our Court of Appeals has applied the Strieff 4 attenuation framework three times, two of which are formal opinions. 5 Yet, none of 5 these cases were brought to the attention of the district court during the preliminary 6 hearing. Nor was the attenuation exception to the exclusionary rule brought to the 7

c ourt’s attention. In fact, there was no mention of this issue at the preliminary 8 hearing. 9
{39} D istrict court judges need the benefit of briefing, time, and a sufficient record 10 to decide complex suppression issues. Asking trial courts to adjudicate these issue s 11

4 The skeletal facts of Strieff are very much like the facts in this case. In Strieff , an officer stopped the defendant without reasonable suspicion. 5 79 U.S. at 235

- 36, 239. Du ring the illegal investigatory stop, the officer discovered that the suspect had a valid arrest warrant. Id. at 235. The officer then discovered illegal drugs and drug paraphernalia when conducting a search incident to arrest. Id. at 235

- 36. The defendant was charged with unlawful possession of the drug

- related materials. Id. at 236.
5 State v. Ramey , 2020

- NMCA

- 041, ¶¶ 1, 6, 19

- 28, 473 P.3d 13 ( engaging in the attenuation analysis and citing Strieff , where the defendant was assumed to be seized without reasonable suspicion, followed by the discovery of a valid arrest warrant and a search incident to arrest leading to the seizure of incriminating evidence); State v. Edwards , 2019

- NMCA

- 070, ¶¶ 1, 4, 6

- 12, 452 P.3d 413 (similar); State v. Baca , A -1-CA- 36722, mem. op. ¶¶ 3

- 8 (N.M. Ct. App. Jan. 7, 2020) (nonprecedential) (similar).25 based on intuition and generalities, as the dissent does, rather than law is 1 inappropriate. In the long run, that does not do justice to defendants, the state, the 2 judiciary, or, ultimately, the people of New Mexico. The better path is for these 3 issues to receive a full, fair, and focused suppression hearing, with the benefit of 4 briefing, sufficient time, and a fully developed record. 5
III. CONCLUSION 6
{40} We hold that a district court judge has no authority at a Rule 5

- 302 preliminary 7 examination to decide whether evidence was obtained from an unconstitutional 8 search or seizure , and we remand for proceedings consistent with this opinion. 9
{41} IT IS SO ORDERED. 10

11 DAVID K. THOMSON , Justice 1226 WE CONCUR: 1

2 JULIE J. VARGAS , Justice 3

4 BRETT R. LOVELESS , Ju dg e 5 S itting by designation 6
C. S HANNON BACON, Chief Justice , d issenting 7 MICHAEL E. VIGIL, Justice , dissenting 827 VIGIL, Justice (dissenting). 1
I. INTRODUCTION 2
{42} According to the majority, a district court judge conducting a preliminary 3 examination 6 “‘should receive the evidence and give it such weight as his judgment 4 and experience counsel,’” maj. op. ¶ 23 (quoting United States v. Matlock , 415 U.S. 5 164, 175 (1974)); however, the judge “has no authority to decide whether evidence 6 was obtained from an unconstitutional search or se izure,” maj. op. ¶ 1. This 7 contradictory conclusion clashes with basic principles enshrined in the New Mexico 8 Constitution and fails to acknowledge the fundamental importance of protecting the 9 constitutional rights of the accused. We cannot agree to such a conclusion. 10
{43} The majority characterizes a district court judge’s consideration of the 11 constitutionality of evidence in a preliminary examination as a “suppression issue.” 12 Maj. op. ¶ 32. Granted, the evidence is suppressed for the purposes of the preliminar y 13 examination, but this does not necessarily mean the evidence is suppressed for the 14 trial itself. A preliminary examination and a trial are distinct proceedings, each with 15 its own set of rules and considerations. See State v. Garcia , 1968

- NMSC

- 119, ¶ 5, 16

6 For consistency with the language in our Constitution (N.M. Const. art. II, § 14; art. VI, § 21) and Rule 5

- 302 NMRA, this dissent uses the term preliminary examination to refer to the proceeding at issue in this case. We note that the majority uses the term preliminary hearing to refer to the same proceeding.28 7 9 N.M. 367, 443 P.2d 860. Moreover, the issue of whether a suppression ruling in 1 a preliminary examination has preclusive effect on the subsequent trial and other 2 procedural issues are not before us. We are confident that our Rules of Criminal 3 Procedure fo r the State Courts Committee could amend Rule 5

- 302 NMRA to 4 address any procedural concerns that may arise in the future. 5
{44} The issue at hand is one of authority and the proper weighing of evidence. 6 Here, the district court judge stated that she would not b ind the case over “for a 7 number of reasons.” The district court judge explained, 8 There was no reason to detain [Defendant] to begin with, I mean that’s 9 what I’m finding. There’s no reason. [Defendant] wasn’t doing illegal 10 activity, he complied with the or ders. [The officer] recognized him I 11 understand that, but he wasn’t doing anything. There’s no reasonable 12 suspicion to even stop him. [The officer] called him out by name; 13 [Defendant] complied. He wasn’t doing any criminal activity at that 14 time so [the cas e] won’t be bound over. 15 Thus, the district court, in its wisdom, took into account the constitutionality of the 16 evidence’s procurement, weighed the evidence, and then made a probable cause 17 determination. Such actions are well within the purview of a district court judge’s 18 authority and duty. 19
{45} It is incumbent upon judges to safeguard constitutional rights and ensure that 20 justice is served. See State v. Gutierrez , 1993

- NMSC

- 062, ¶ 55, 116 N.M. 431, 863 21 P.2d 1052 (“The very backbone of [the judiciary’s] role in a tripartite system of 2229 government is to give vitality to the organic laws of this state by construing 1 constitutional guarantees in the context of the exigencies and the needs of everyday 2 life.”). Failing to consider the constitutionality of evidence under mines the very 3 fabric of our legal principles and compromises the integrity of our justice system. 4 See id. ¶¶ 50

- 56 (explaining that the exclusionary rule is not based on judicial 5 integrity or deterrence, yet it undeniably promotes these crucial state poli cies). 6
{46} In light of these concerns, we respectfully dissent. 7
II. DISCUSSION 8
{47} A district court, entrusted with the solemn task of dispensing justice, has the 9 authority to assess the constitutionality of evidence during a preliminary 10 examination. The reasoning be hind our assertion is firmly rooted in the authority 11 provided to district courts under the New Mexico Constitution and our Rules of 12 Criminal Procedure for District Courts, a judge’s duty to protect constitutional 13 rights, the disparities between a prelimina ry examination and a grand jury 14 proceeding, and this Court’s core interpretation of Article II, Section 10 of the New 15 Mexico Constitution. 16
A. A Judge’s Authority 17
{48} Under the New Mexico Constitution, district courts are explicitly granted the 18 power to hold preliminary examinations. The New Mexico Constitution 1930 unequivocally states that the judicial power of the state is vested in various courts, 1 including district cour ts, N.M. Const. art. VI, § 1, which possess “original 2 jurisdiction in all matters and causes not excepted in [the New Mexico Constitution], 3 and such jurisdiction of special cases and proceedings as provided by law.” N.M. 4 Const. art. VI, § 13. One such proceeding is a preliminary examination. See N.M. 5 Const. art. VI, § 21 (“District judges and other judges or magistrates designated by 6 law may hold preliminary examinations in criminal cases.”); see also N.M. Const. 7 art. II, § 14 (“No person shall be so held on information without having had a 8 preliminary examination before an examining magistrate, or having waived such 9 preliminary examination.”). Further, with regard to a district court’s original 10 jurisdiction, “the district court has the authority to consider constitutional claims in 11 the first instance.” Maso v. N.M. Tax’n & Revenue Dep’t, Motor Vehicle Div. , 2004

- 12
NMCA

- 025, ¶ 14, 135 N.M. 152, 85 P.3d 276; see Marchman v. NCNB Texas Nat’l 13 Bank , 1995

- NMSC

- 041, ¶ 27, 120 N.M. 74, 898 P.2d 709 (“The district court thus 14 is a court of general jurisdiction, because it has jurisdiction over all matters not 15 expressly consigned to other courts.”). 16
{49} In light of these constitutional provisions, it becomes abundantly clear that 17 district courts possess the authority to hold preliminary examinations and consider 18 constitutional issues. This authority is not only granted by the New Mexico 1931 Constitution, but it is also recognized as an essential aspect of our judicial system. 1 See State ex rel. Whitehead v. Vescovi

- Dial , 1997

- NMCA

- 126, ¶ 6, 124 N.M. 375, 2 950 P.2d 818 (“[A] preliminary examination operates as a screening device to 3 prevent hasty and unwise prosecutions and to save an innocent accused from the 4 humiliation and anxiety of a public prosecution.”). 5
{50} Additionally, our Rules of Criminal Procedure for the District Courts clarify 6 that district courts have the responsibility and authority to adjudicate evidentiary 7 issues during preliminary examinations. See Rule 5

- 302(D) (requiring the court to 8 make a probable cause determination ); see also Rule 5

- 302(B)(5) (providing that the 9 Rules of Evidence apply in a preliminary examination). This includes weighing the 10 evidence presented “and assess[ing] the existence of probable cause from a 11 developed factual record.” State v. Muraida , 2014

- NMCA

- 060, ¶ 23, 326 P.3d 1113; 12 see State v. Archuleta , 1970

- NMCA

- 131, ¶ 25, 82 N.M. 378, 482 P.2d 242 (stating 13 that where the “defendant was charged by an information, he ha[s] a constitutional 14 right to a preliminary examination”); see also UJI 14

- 8001 NMR A (instructing 15 grand jurors that a decision on probable cause must be based “solely upon the 16 evidence received” which may be determined to be “true or false” and given 17 “whatever weight .

. . it deserves”). Thus, district court judges are empowered by 18 our own rules to conduct preliminary examinations, adjudicate evidentiary issues, 1932 weigh the evidence presented, and make probable cause determinations. See 1 Muraida , 2014

- NMCA

- 060, ¶ 23. And, in exercising its original jurisdiction, district 2 courts have “the aut hority to consider constitutional claims in the first instance.” 3
Maso , 2004

- NMCA

- 025, ¶ 14. 4
{51} While the majority acknowledges the existence of this authority, maj. op. 5 ¶¶ 20, 23, it still questions whether district courts may consider the constitutionality 6 of the evidence in making a probable cause determination. The answer is a 7 resounding yes. It is the duty of every judge, including those presiding over 8 preliminary examinations, to ensure that the constitutional rights of a defendant are 9 upheld. They are empowered and equipped to do so. 10
B. A Judge’s Duty 11
{52} On numerous occasions, this Court has emphasized that a judge must “protect 12 the constitutional rights of [a d]efendant and the integrity of the court.” State v. 13 Hildreth , 2022

- NMSC

- 012, ¶ 38, 506 P.3d 354; see State v. Grogan , 2007

- NMSC

14 039, ¶ 10, 142 N.M. 107, 163 P.3d 494 (providing that “in cases of obvious 15 ineffective assistance of counsel, the trial judge has the duty to maintain the integrity 16 of the court, and thus inquire into the representation”). This duty to protect the 17 constitutional rights of a defendant is no less applicable in the context of a 18 preliminary examination. See State v. Vaughn , 1964

- NMSC

- 158, ¶ 9, 74 N.M. 365, 1933 393 P.2d 711 (“When violation of a constitutional right in the proceedings before 1 the magistrate is brought to the attention of the trial court and found to exist, the 2 accused’s right and the court’s duty is to abate the information until there has been 3 a proper preliminary examination.” (emphasis added)). Consequently, it is not only 4 a prerogative but also an obligation of a judge to consider the constitutionality of the 5 evidence presented in a preliminary examination. 6
{53} As guardians of justice, judges must carefully evaluate the evidence presented 7 and assess its legality. If judges

— in their experience and judgment

— believe that 8

e vidence was obtained in an unconstitutional manner, they have the authority and 9 duty to give that evidence little, if any, weight in making a probable cause 10 determination. Such a duty is consistent with the constitutional requirement that 11 “every person elected or appointed to any office shall .

. . subscribe to an oath or 12 affirmation that he will support the constitution of the United States and the 13 constitution and laws of this state, and that he will faithfully and impartially 14 discharge the duties of his office to the best of his ability.” N.M. Const. art. XX, § 1. 15
{54} Moreover, when we examine the substantial differences between a 16 preliminary examination and a grand jury proceeding, the importance of weighing 17 the constitutionality of the evidence becomes ever more apparent. This is because 1834 preliminary examinations provide crucial procedural safeguards and afford 1 defendants a range of rights that are not present in a grand jury setting. 2
C. Preliminary Examinations and Grand Jury Proceedings 3
{55} Before detailing the disparities between a preliminary examination and a 4 grand jury proceeding, some context is necessary. To charge a defendant with a 5 felony, the state may either obtain an indictment from a grand jury or file a criminal 6 information. See N.M. Const. art. II, § 14. “If charged by criminal information, a 7 defendant has a right to a preliminary examination. No such right exists if the 8 defendant is indicted by a grand jury.” State v. Burk , 1971

- NMCA

- 018, ¶ 2, 82 N.M. 9 466, 483 P.2d 940. “The choice to proceed by information or indictment is that of 10 the [s]tate.” Id. ¶ 6. “The state may choose to seek a grand jury indictment for the 11 same offense following an unfavorable preliminary examination.” State v. White , 12
2010

- NMCA

- 043, ¶ 12, 148 N.M. 214, 232 P.3d 450. 13
{56} Our Court of Appeals correctly stated that “[t]he primary purpose of the 14 preliminary examination is to provide an independent evaluation of whether the state 15 has met its burden of demonstrating probable cause.” Whitehead , 1997

- NMCA

- 126, 16 ¶ 5. Importantly, the New Mexico Constitution “provides .

. . for a preliminary 17 examination as a right which is personal to the accused, for his or her benefit, and 18 accordingly one which is waivable in its entirety by the defendant and not 1935 enforceable independently by the prosecution. ” Id. ¶ 12; see N.M. Const. art. II, § 14. 1 This personal right of the accused to a preliminary examination is included in the 2 Bill of Rights of the New Mexico Constitution, “stand[ing] shoulder to shoulder with 3 the most basic guarantees of individual liber ty against the power of the state, such 4 as the right of self

- government ([N.M. Const.] art. II, § 3), the right to life, liberty 5 and property ([N.M. Const.] art. II, § 4), the right of habeas corpus ([N.M. Const.] 6 art. II, § 7), the right to bear arms ([N. M. Const.] art. II, § 6), the freedom of elections 7 ([N.M. Const.] art. II, § 8),

. . . the freedoms of speech, press, and religion ([N.M. 8 Const.] art. II, §§ 11, 17),” Whitehead , 1997

- NMCA

- 126, ¶ 12, and notably, the right 9 to be free from an unreasonable search and seizure (N.M. Const. art. II, § 10). These 10 are all “guarantees of liberty to be invoked by the accused in a criminal prosecution, 11 as the accused sees fit.” Whitehead , 1997

- NMCA

- 126, ¶ 12. With this important 12 context, we now turn to the many differences between a preliminary examination 13 and a grand jury proceeding. 14
{57} A preliminary examination is a critical stage of the criminal proceedi ngs 15 against an accused, Vaugh , 1964

- NMSC

- 158, ¶ 3, where “the state is required to 16 establish, to the satisfaction of the examining judge, two components: (1) that a 17 crime has been committed; and (2) probable cause exists to believe that the person 18 charged committed it,” White , 2010

- NMCA

- 043, ¶ 11. Preliminary examinations are 1936 adversarial in nature and open to the public

. Herrera v. Sanchez , 2014

- NMSC

- 018, 1 ¶ 16, 328 P.3d 1176. The defendant plays an active role and is permitted rights 2 necessary to test the state’s case. Id. These include the right to be present with 3 counsel throughout the proceeding, to cross

- examine the State’s witnesses, to call 4 and subpoena witnesses on the defendant’s own behalf, and to access any evidence 5 in the prosecution’s possession that is material in the preparation of the defense. Rule 6 5-302(B)(1)- (4). Also, the New Mexico Rules of Evidence app ly. Rule 5 -302(B)(5). 7 Notably, the committee commentary for Rule 5

- 302 stresses that these procedures 8 and rights afforded to a defendant are “not intended to be a comprehensive list of the 9 defendant’s rights.” 10
{58} Unlike the public and adversarial nature of p reliminary examinations, gra nd 11 jury proceedings are secretive and one

- sided. Herrera , 2014

- NMSC

- 018, ¶ 16. On 12 the one hand, the prosecutor controls the grand jury process. Id. The prosecutor 13 questions witnesses, presents evidence, and instructs the grand jury on the law and 14 its application. Id. ¶¶ 15

- 16. On the other hand, the target of the grand jury 15 proceeding has limited rights: the target can choose to testify, see NMSA 1978, 16 § 31 -6-11(C)(3)- (5) (2003), request the prosecutor inform the grand jury of 17

ex culpatory evidence and possible defenses, see § 31 -6- 11(B) , and consult with 18 counsel in a manner that is not audible to the grand jurors, s ee NMSA 1978, § 31 -6- 1937 4(D) (2003)

. Other than this silent consultation, t he target ’ s attorney may not 1 participate in the proceedings. Id. Moreover, “[t]he grand jury sits without direct 2 supervision from the grand jury judge,” Herrera , 2014

- NMSC

- 018, ¶ 15, and the 3 rules of evidence do not apply, Section 31 -6- 11(A). 4
{59} This stark contrast between the rights afforded, the nature of the proceedings, 5 the application of the rules of evidence, and a judge’s involvement, counsels in favor 6 of adopting a rule that district court judges have authority to take into account the 7 constitutionality of the evidence’s procurement during a preliminary examination. 8 These disparities, in concert with the authority granted to district court judges under 9 the New Mexico Constitution and their duty to protect a defendant’s constitutional 10 rights, strongly support the adoption of such a rule. Furthermore, the adoption of this 11 rule seems inevitable given this Court’s core interpretation of Article II, Section 10. 12
D. Article II, Section 10 13
{60} We now turn to this Court’s precedent, particularly Gutierrez , 1993

- NMSC

14 062, and its interpretation of Article II, Section 10. As will soon be clear , the 15 majority ’ s conclusion is in direct opposition to the Gutierrez Court’ s ruling, 16 rationale, and understanding of the exclusionary rule. 17
{61} In Gutierrez , this Court analyzed “whether the New Mexico Constitution 18 contemplates a good

- faith exception to the exclusionary rule.” 1993

- NMSC

- 062 , 1938 ¶ 15 . The Gutierrez Court concluded that the federal good

- faith exception was 1 incompatible with the New Mexico Constitution. Id. ¶ 45. In arriving at this 2 conclusion, the Court thoroughly examined the history and application of the federal 3 exclusionary rule, New Mexico search and seizure jurisprudence, the framers’ intent 4 as to the scope, meaning, and effect of Article II, Section 10, and search and seizure 5 law as it was in 1911. Guti errez , 1993

- NMSC

- 062 , ¶¶ 16

- 43. In the end, the 6
Gutierrez Court held that at its core, the “ constitutional prohibition against 7 unreasonable searches and seizures requires that we deny the state the use of 8 evidence obtained in violation of Article II, Section 10 in a criminal proceeding

. ” 9
Gu ti errez , 1993

- NMSC

- 062 , ¶ 45. 10
{62} The Gutierrez Court, id. ¶ 46, observed that “[a]s a starting point, Article II, 11 Section 10 expresses the fundamental notion that every person in this state is entitled 12 to be free from unwarranted governmental intrusions. ” The Court explained that 13 “[t]his broad right .

. . implicit in Article II, Section 10, considered in the context of 14 criminal prosecution brought to bear after violation of that right, ” was paramount to 15 its rejection of the federal good

- faith exception. 1993

- NMSC

- 062 , ¶ 46. The 16
Gutierrez Court, id. ¶ ¶ 48

- 50, then ut ilized two cases to illustrate “the essential core” 17 of its interpretation of Article II, Section 10

— United States v. Moun D ay , 208 F. 186 1839 (D. Kan. 1913) and United States v. Wong , 94 F. 832 (D. Vt. 1899)

. MounDay is 1 particularly illuminating to the issue at hand. 2
{63} In MounDay , the defendants were arrested and private property was seized 3 pursuant to an unconstitutional search. 208 F. at 186

- 87 . “ Thereafter [the] defendants 4 were bound over to await the action of the grand jury. ” Id. at 187. After the arrest, 5 but prior to the grand jury indictment, the defendants in Moun D ay filed an 6 application to the district court requesting that the unconstitutionally obtained 7 evidence be returned

. Id. The district attorney filed a cross

- application requesting 8 author ization to present the illegally obtained evidence to the grand jury to secure 9 an indictment. Id. The question before the MounDay Court was whether the state in 10 a criminal prosecution may use illegally obtained evidence for the purpose of 11 securing an indic tment when “the question is presented and inquired of .

. . in 12 advance of investigation by the grand jury, or indictment returned[.]” Id. at 188. The 13 MounDay Court concluded that the evidence could not be used either “before the 14 grand jury or at the trial,” and it granted the defendants’ application and ordered the 15 property to be returned. Id. at 190. The MounDay Court stated its rationale: 16 How, therefore, can the rights of defendants “to be secure in their 17 persons, houses, papers and effects” be asserted by and granted to them, 18 as the Constitution guarantees, in this court? Can it be done by placing 19 in the hands of the government officials charged by law with the 20 prosecution of defendants as offenders against its laws the fruits of this 21 unlawful invasion of constitutional rights of defendants by the agents 2240 of the government, and this in the very teeth of that provision of article 1 5 above quoted, which declares “no person .

. . shall be compelled in 2 any criminal case to be a witness against himself; nor be de prived of 3 life, liberty or property without due process of law”? As yet, defendants 4 stand charged with the commission of no criminal offense in this court. 5 Even if so charged, this court must and will presume their innocence 6 until the contrary is proven be yond reasonable doubt. In order to secure 7 such proof and assist the government in overcoming the presumption 8 of innocence which attends upon defendants and all other citizens until 9 lawful conviction had, shall this court wink at the unlawful manner in 10 whic h the government secured the proofs now desired to be used, and 11 condone the wrong done defendants by the ruthless invasion of their 12 constitutional rights, and become a party to the wrongful act by 13 permitting the use of the fruits of such act? Such is not m y conception 14 of the sanctity of rights expressly guaranteed by the Constitution to a 15 citizen. 16
Moun D ay , 208 F. at 189. 17
{64} T he Gutierrez Court quoted with approval the language above and expressed 18 that it “suggest[s] the essential core of [the Court’s] interpretation of Article II, 19 Section 10.” 1993

- NMSC

- 062, ¶ ¶ 48, 50. The Court elaborated: “We ask, much as 20 the court in Moun D ay asked, how this Court can effectuate the constitutional right 21 to be free from unreasonable search and seizure. The answer to us is clear: to deny 22 the government the use of evidence obtained pursuant to an unlawful search. ” Id. 23 ¶ 50. 24
{65} Gutierrez teaches that at its core, Article II, Section 10 conveys a “broad right” 25 to every person in this state “to be free from unwarranted governmental i ntrusions.” 26 Id. ¶ 46. It is not a right that is incumbent on a criminal prosecution or a phase where 2741 guilt or innocence is definitively determined. It is “a passive right” that all carry with 1 them; it “lies in waiting, to curb the state’s zeal in execution of the criminal laws.” 2 Id. ¶ 54. As succinctly stated by Chief Justice Bacon during oral argument, “We are 3 talking about a constitutional right that we carry on our backs everywhere we go. 4 Unlike many constitutional rights which are triggered once action is taken, this is 5 something that we are imbued with in our everyday lives.” The only way for this 6 Court, or a district court for that matter, to “effectuate the constitutional right to be 7 free from unreasonable search and seizure .

. . is .

. . to deny the government the use 8 of evidence obtained pursuant to an unlawful search.” Id. ¶ 50. This includes the use 9 of illegally obtained evidence to get a probable cause determination in a preliminary 10 examination. 7 11

7 We note that this conclusion is consistent with this Court’s holding in State v. Ma rtin ez , 2018

- NMSC

- 031, ¶ 1, 420 P.3d 568, that “a court may not overturn an otherwise lawful grand jury indictment because of trial inadmissibility or improprieties in the procurement of evidence that was considered by the grand jury.” The distinction between Martinez and Moun D ay is that, in the latter case, the question of the legality of evidence was presented to a judge prior to obtaining a grand jury indictment. Thus, while a district court does not have the authority to overturn an otherwise lawful grand jury indictment which is based on illegal evidence, it does have the authority and duty to consider constitutional claims presented prior to an indictment. See Moun D ay , 208 F. at 18 8 (“ Where it is concede d e vidential matters material to the inquiry made have been seized, as in this case, may or should the court, on being inquired of , permit such use of such matters as is desired by the representative of the government, as is shown by his application in this case? ” (emphasis added )).42 E. The Majority Opinion 1
{66} The majority acknowledges that “[t]he structure of a preliminary 2 [examination] is indeed very different from that of a grand jury proceeding,” maj. 3
op. ¶ 12; however, the majority does not wish “to add further imbalance between 4 these two related alternatives for probab le cause findings,” maj. op. ¶ 16, by ruling 5 that a district court judge has the authority to consider the constitutionality of 6 evidence in a preliminary examination. This procedural concern is unconvincing for 7 several reasons. 8
{67} First, the differences between a preliminary examination and a grand jury 9 proceeding already incentivize the state to proceed by grand jury indictment. See 10 Burk , 1971

- NMCA

- 018, ¶ 5. Such is the state’s prerogative. Id. ¶ 2. Second, the 11 majority’s conclusion ignores a judge’s duty to protect a defendant’s constitutional 12 rights. See Gutierrez , 1993

- NMSC

- 062, ¶ 55. Third, to “wink at the unlawful manner 13 in which the government secured the proofs now desired to be used, and condone 14 the wrong done [to Defendant] by the ruthless invasion o f [his] constitutional rights, 15 and become a party to the wrongful act by permitting the use of the fruits of such 16 act,” Moun D ay , 208 F. at 189, runs counter to this Court’s holding in Gutierrez , 17
1993

- NMSC

- 062

. 1843 {68} Next, the majority claims that if we were to allow district court judges to 1 consider the legality of evidence in a preliminary examination, the judge’s 2 determinations would then be subject to appeal, causing significant delays. Maj op. 3 ¶ 21. To this point, the majority notes that Defendant’s appeal relates to a preliminary 4 examination which occurred more than three years ago. Maj op. ¶ 21. However, this 5 procedural argument suffers the same infirmities described above. What is more, the 6 State in this case did not appeal from an order suppressing eviden ce, see NMSA 7 1978, § 39 -3- 3(B)(2) (1972), instead the State appealed pursuant to Section 39 -3- 8 3(B)(1), which is “a decision, judgment or order dismissing a complaint, indictment 9 or information as to any one or more counts.” Thus, this avenue of appeal is 10

u ndisturbed by any rule this Court articulates today. Also, we again question 11 characterizing the district court judge’s consideration on the constitutionality of 12 evidence as a suppression of evidence. See maj. op. ¶ 32. There was no order 13 suppressing evidence. Because of this, we view the district court’s actions as making 14 a probable cause determination based on the evidence presented and taking into 15 consideration the constitutionality of the evidence’s procurement in making its 16 determination. As reflected a bove, such actions are within a district judge’s authority 17 and duty. 1844 {69} Aside from these procedural concerns, the majority makes three substantive 1 points in support of its position: (1) State v. Lopez , 2013

- NMSC

- 047, 314 P.3d 236, 2 “shows that not all constitu tional rights are available at a preliminary 3 [examination],” (2) “ Martinez shows that there is no broad right to suppress evidence 4 at the probable cause stage under the New Mexico Constitution,” and (3) “ Gutierrez 5 cannot be read to require suppression” of evidence at a stage earlier than that of a 6 suppression hearing. Maj. op. ¶¶ 29

- 32. We disagree with the conclusions drawn 7 from these cases. We address each point in turn. 8
{70} In Lopez , this Court held “ that the right of confrontation in Article II, Section 9
14 of the New Mexico Constitution is a trial right that does not apply to probable 10 cause determinations in preliminary examinations. ” 2013

- NMSC

- 047, ¶ 26. This 11 makes sense. The right of confrontation prohibits the “admission of testimonial 12 statements of a witness who did not appear at trial unless he was unavailable to 13 testify, and the defendant ha[s] had a prior opportunity for cross

- examination.” 14 Crawford v. Washington , 541 U.S. 36, 53

- 54 (2004) (emphasis added). Thus, a 15 violation of the right is triggered when the witness is absent from trial and the 16 defendant was given no prior opportunity to cross

- examine. See id. at 59 n.9 17 (“ Final ly, we reiterate that, when the declarant appears for cross

- examination at trial, 18 the Confrontation Clause places no constraints at all on the use of his prior 1945 testimonial statements. ”). This is not the case for the right to be free from an 1 unreasonable search and seizure. 2
{71} A violation of the right to be free from an unconstitutional search and seizure 3 is not dependent on some event at trial. The right is violated at the time of the 4 unconstitutional search and seizure. See Soldal v. Cook Cnty., 506 U.S. 56, 67 n.11 5 (1992) (“ Fourth Amendment guarantee s are triggered by governmental searches and 6 seizures without regard to the use to which houses, papers, and effects are applied.” 7 (brackets, internal quotation marks, and citation omitted)); see also Gutierrez , 1993

- 8
NMSC

- 062 , ¶ 46 (“ As a starting point, w e observe that Article II, Section 10 9 expresses the fundamental notion that every person in this state is entitled to be free 10 from unwarranted governmental intrusions. ”). Surely the majority would not suggest 11 that Article II, Section 10 protections only attach at trial in a criminal prosecution or 12 a phase where guilt or innocence is definitively determined. 13
{72} To the majority’s second point, it is not at all clear how the majority can 14 conclude “ Martinez shows that there is no broad right to suppress evidence a t the 15 probable cause stage,” maj. op. ¶ 29, and in the same breath “conclude that the grand 16 jury analysis in Martinez does not control the result in this case,” maj. op. ¶ 14. To 17 the extent it is argued that Martinez has bearing on this case, we refer to t he above 1846 analysis on the disparities between preliminary examinations and grand jury 1 proceedings. 2
{73} The majority’s final point is that Gutierrez does not compel the exclusion of 3 evidence obtained in violation of Article II, Section 10 before a suppression he aring. 4 Maj. op

. ¶ 32. It reason s that because Gutierrez did not involve such a scenario, its 5 pronouncement that we must bar the state from using unlawfully seized evidence 6

“‘ in a criminal proceeding, ’ ” must be confined to the facts of that case. Maj. op. ¶ 32 7 (quoting Gutierrez , 1993

- NMSC

- 062, ¶ 45 )

. We urge the majority to follow its own 8 counsel and appreciate the broader principle Gutierrez established. 9
{74} The majority latches onto the two times the Gutierrez Court utilized language 10 beneficial to its position. See maj. op. ¶ 32. First, when the Gutierrez Court used the 11 language “at trial,” and second, when the Court quoted Weeks v. United States , 232 12 U.S. 383, 398 (1914) and its use of the language “upon the tr ial.” Gutierrez , 1993

- 13
NMSC

- 062, ¶¶ 51, 55; see maj. op. ¶ 32. Close examination of the context in which 14 the quoted language was used demonstrates it does not support the majority position. 15
{75} Immediately preceding the use of the language “at trial,” the Guti errez Court 16 explains that the only way “this Court can effectuate the constitutional right to be 17 free from unreasonable search and seizure .

. . is .

. . to deny the government the use 18 of evidence obtained pursuant to an unlawful search.” 1993

- NMSC

- 062, ¶ 50. Over 1947 and over again, the Gutierrez Court announced a broad, sweeping rule to deny the 1 government’s use of evidence obtained in violation of Article II, Section 10. This 2 comprehensive rule is sufficient to encompass preliminary examinations. See 3
Gutierr ez, 1993

- NMSC

- 062, ¶ 50. (“ We ask, much as the court in Moun D ay asked, 4 how this Court can effectuate the constitutional right to be free from unreasonable 5 search and seizure. The answer to us is clear: to deny the government the use of 6 evidence obtained pu rsuant to an unlawful search. ”); id. ¶ 45 (“ We are satisfied

. . . 7 that the New Mexico constitutional prohibition against unreasonable searches and 8 seizures requires that we deny the state the use of evidence obtained in violation of 9 Article II, Section 10 in a criminal proceeding. ”); i d. ¶ 46 (“ As a starting point, we 10 observe that Article II, Section 10 expresses the fundamental notion that every 11 person in this state is entitled to be free from unwarranted governmental 12 intrusions. ”); i d. ¶ 53 (“ If, after c onsideration of the substantive constitutional issue, 13 the court decides that the state has transgressed the constitutional rights of a person 14 accused of a crime, we will not sanction that conduct by turning the other cheek. ”); 15
i d. ¶ 54 (“Once violation of Article II, Section 10 has been established, we do no 16 more than return the parties to where they stood before the right was violated. ”). 17 Additionally, by stating that MounDay

— a case where the government was denied 18 the use of illegally obtained evidence before any suppression hearing, 208 F. at 1948 189

— “suggest[s] the essential core of our interpretation of Article II, Section 10,” 1 the Gutierrez Court made clear that we are to deny the government the use of 2 evidence obtained pursuant to an unlawful search at any stage in a criminal 3 proceeding. 1993

- NMSC

- 062, ¶ 50. 4
{76} As for the quoted language in Weeks , the Gutierrez Court emphasized that the 5 constitutional rights of the defendant in that case were violated not upon the use of 6 illegally obtained evidence at trial, but when the court refused to return the 7 defendant’s letters prior to trial: 8 We therefore reach the conclusion that .

. . there was involved in the 9 order refusing the application [for return of the seized property] a denial 10 of the constitutional rights o f the accused , and that the court should 11 have restored these letters to the accused. In holding them and 12 permitting their use upon the trial, we think prejudicial error was 13 committed. 14
Gutierrez , 1993

- NMSC

- 062, ¶ 51 (alterations in original) (internal quota tion marks 15 omitted) (quoting Weeks , 232 U.S. at 398). The Gutierrez Court emphasized this 16 language because it is wedded to the theory that the only way to vindicate the 17 constitutional right to be free from unreasonable search and seizure is to deny the 18
gov ernment the use of evidence obtained pursuant to an unlawful search. See id. ¶ 50 19 (“This, we believe, is the rationale at work in Weeks .”). The majority’s reliance on 20 the “upon the trial” language is thus misguided. 2149 III. CONCLUSION 1
{77} Our position is that district court judges have both the power and the 2 obligation to evaluate the constitutionality of evidence at a preliminary examination. 3 This follows from the authority granted to district courts by the New Mexico 4 Constitution and our Rules of Criminal Procedure, a judge’s responsibility to 5 safeguard the constitutional rights of defendants, the differences between a 6 preliminary examination and a grand jury proceeding, and this Court’s fundamental 7 interpretation of Article II, Section 10 of the New Mexico Constituti on. The majority 8 does not share this view, so we respectfully dissent. 9
{78} IT IS SO ORDERED. 10

11 M ICHAEL E. VIGIL, Justice 12 I CONCUR: 13

14 C. S HANNON BACON, Chief Justice 15