State v. Vasquez

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.

1 IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

2 Opinion Number:

3 Filing Date: November 18, 2024

4 NO. S-1-SC-39474

5 STATE OF NEW MEXICO,

6 Plaintiff-Appellant,

7 v.

8 JESSICA VASQUEZ,

9 Defendant-Appellee.

10 CERTIFICATION FROM THE NEW MEXICO COURT OF APPEALS
11 Melissa A. Kennelly, District Judge

12 Raúl Torrez, Attorney General
13 Maris Veidemanis, Assistant Attorney General
14 James W. Grayson, Chief Deputy Attorney General
15 Santa Fe, NM

16 for Appellant

17 Bennett J. Baur, Public Defender
18 Kimberly Chavez Cook, Appellate Defender
19 Santa Fe, NM

20 for Appellee
1 OPINION

2 THOMSON, Chief Justice.

3 INTRODUCTION

4 This Court has recognized that “[f]reedom from illegal search and seizure is a

5 fundamental right.” State v. Vargas, 2017-NMSC-029, ¶ 14, 404 P.3d 416 (internal

6 quotation marks omitted) (quoting State v. Gomez, 1997-NMSC-006, ¶ 31 n.4, 122

7 N.M. 777, 932 P.2d 1).

8 A district court judge in rural New Mexico noticed a pattern of warrantless

9 searches and seizures throughout her docket, where the resulting evidence formed

10 the basis for the State’s prosecution. In New Mexico, a warrantless search is

11 presumptively unconstitutional and subject to rebuttal by the State, yet there

12 appeared to be a clear failure by trial counsel to challenge how the evidence was

13 obtained. The district court (on its own) filed a series of orders setting suppression

14 hearings in thirty cases.

15 Thirteen of these cases were proactively dismissed (nolle prosequi) by the

16 prosecution before the district court reached a determination on suppression. The

17 justifications provided by the prosecution reveal the origin of the district court’s

18 concerns including dismissal because of a “[K]afkaesque arrest for an unnamed

19 charge and subsequent search and retrieving of evidence” that made “no justifiable
1 sense.” Nolle Prosequi, State v. Alex Kolb, D-809-CR-2020-00124 (8th Jud. Dist.

2 Ct. Sept. 17, 2021). Other reasons provided by the prosecution for dismissal were

3 less trenchant but equally troubling. Nolle Prosequi, State v. Coy Cleburn, D-809-

4 CR-2020-00186 (8th Jud. Dist. Ct. Sept. 17, 2021) (“[T]he incident was an arguably

5 bad search.”); Nolle Prosequi, State v. Patrick Gonzales, D-809-CR-2020-00149

6 (8th Jud. Dist. Ct. Sept. 17, 2021) (“[T]he law enforcement officer threatened to

7 impound the vehicle if the owner of the vehicle did not consent to the search.”);

8 Nolle Prosequi, State v. Rosa Vigil, D-809-CR-2019-00116 (8th Jud. Dist. Ct. Sept.

9 17, 2021) (“[T]he search of the vehicle incident to arrest is not justified by facts and

10 neither was the opening of the draw string bag.”); Nolle Prosequi, State v. Christian

11 Ortega, D-809-CR-2020-00152 (8th Jud. Dist. Ct. Sept. 17, 2021) (“[T]he law

12 enforcement investigative officers made arguably inconsistent reports as to how they

13 received permission to enter the residence.”). Ultimately, evidence was suppressed

14 in six of the remaining seventeen cases, including the nameplate case.

15 This Court must determine whether a district court may sua sponte raise the

16 issue of suppression through an order for a suppression hearing. The issue framed in

17 this certified matter is similar to that described by Justice Cardozo in People v.

18 Defore, 150 N.E. 585, 589 (N.Y. 1926), while he sat on New York’s high court:

19 “The question is whether protection for the individual would not be gained at a

2
1 disproportionate loss of protection for society. On the one side is the social need that

2 crime shall be repressed. On the other, the social need that law shall not be flouted

3 by the insolence of office.” For this case, through six questions from the State,

4 certified to this Court by our Court of Appeals, we consider the overarching question

5 in the context of (1) standing, (2) jurisdiction, (3) separation of powers, (4)

6 ineffective assistance of counsel as a recourse, (5) bias, and (6) particularity

7 requirements for a court’s order for a suppression hearing. The Certification Order

8 asserts that “the suppression order [for this case] detail[s] the district court’s

9 reasoning for identifying and raising suppression concerns in numerous cases and is

10 representative of the [six] cases certified to [this] Court.”

11 BACKGROUND

12 In this case, there was a warrantless search of a home. A search warrant was

13 subsequently obtained with a probable cause foundation that was partially based on

14 the original warrantless search. The district court sua sponte ordered a suppression

15 hearing and, after a hearing and briefing from both parties, entered an Order

16 Suppressing Evidence (Suppression Order), finding that Defendant “Was Unlawfully

17 Coerced into Giving Police Consent to Enter Her Home, and Police Were Not

3
1 Justified in Entering Her Home Under the Emergency Assistance Doctrine.” 1 The

2 State appealed the suppression of the evidence to the Court of Appeals. The Court

3 of Appeals, in turn, certified the case to this Court.

4 In the Order setting briefing, this Court instructed the parties to file briefs to

5 “address the issues articulated in the certification order” in accordance with our rules

6 governing briefing. See Rule 12-318(A)(4)-(5) NMRA (requiring that a brief in chief

7 include an argument for each issue that provides the applicable standard of review,

8 applicable authority, and a conclusion containing a precise statement of the relief

9 sought).

10 The State did not comply with the certification instructions in that its briefing

11 only fully addresses two of the six questions on certification that sought to explore

12 the authority of the district court to act as it did. The State discussed the district

13 court’s lack of standing (Question One) or jurisdiction (Question Two) to order a

14 suppression hearing on its own and absent a request by Defendant. The State briefly

15 discussed bias (Question Five), citing only the Code of Judicial Conduct, failing to

16 elaborate and neglecting to provide either support for its allegation of bias or a

1
The State discusses the merits of the district court’s suppression of the
evidence at length. This matter was not presented for our review and is most
appropriately reviewed by the Court of Appeals on remand.

4
1 suggested remedy to any harm resulting from alleged bias. Significantly, the State

2 did not brief this Court on the remaining three questions: separation of powers

3 (Question Three), ineffective assistance of counsel as a recourse (Question Four),

4 and particularity requirements for a court’s sua sponte order for a suppression

5 hearing (Question Six). Therefore, we deem these arguments waived. See Rule 12-

6 318(A)(4) (requiring parties to “set forth a specific attack . . . or the finding shall be

7 deemed conclusive”).

8 Despite incomplete briefing, we address the legal questions presented on

9 certification for the benefit of the Court of Appeals⸻to whom we remand the six

10 certified and related cases held in abeyance⸻for its own review and determination

11 consistent with this opinion.

12 DISCUSSION

13 A. Certified Question One: Did the district court lack jurisdiction to sua
14 sponte raise the suppression issue because it was not “aggrieved” by the
15 alleged violation of rights?

16 No. We hold that a court does not have to be an aggrieved party to raise the

17 issues surrounding a warrantless search and to order a hearing and briefing to address

5
1 the issues. 2 The State raises standing, arguing that the district court “improperly

2 disregarded Defendant’s initial burden of production” by initiating a suppression

3 hearing when it was not an aggrieved party. The State’s argument is inconsistent

4 with existing standing jurisprudence. We review whether Rule 5-212(A) NMRA

5 imputes a defendant’s requirement of standing to district courts to sua sponte raise

6 suppression issues de novo, and we and conclude it does not. See Rule 5-212(A) (“A

7 person aggrieved by a search and seizure may move for the return of the property

8 and to suppress its use as evidence.” (emphasis added)); see also Allen v. LeMaster,

9 2012-NMSC-001, ¶ 11, 267 P.3d 806 (“The proper interpretation of our Rules of

10 Criminal Procedure is a question of law that we review de novo.”).

11 First, standing relates to a litigant’s right to raise an issue and requires a

12 showing of the litigant’s “personal stake in the outcome of a case.” Doña Ana Cnty.

13 Clerk v. Martinez, 2005-NMSC-037, ¶ 13, 138 N.M. 575, 124 P.3d 210 (quoting

14 Key v. Chrysler Motors Corp., 1996-NMSC-038, ¶ 11, 121 N.M. 764, 918 P.2d 350

15 (internal quotation marks omitted)). In the context of the Fourth Amendment to the

2
This opinion in no way compels a court to attempt to identify or address such
issues. We do not impose an obligation to identify or address the issues; we simply
acknowledge a court’s authority to do so. While it may be prudent for a Rule of
Criminal Procedure to guarantee that all evidence seized in a presumptively
unconstitutional search be subject to a suppression hearing, we have not yet
promulgated/issued such a rule.

6
1 United States Constitution, standing “captur[es] the idea that a person must have a

2 cognizable Fourth Amendment interest in the place searched before seeking relief

3 for an unconstitutional search.” Byrd v. United States, 584 U.S. 395, 410 (2018). In

4 New Mexico, “one must be the victim of the search in the sense that one’s right of

5 privacy was invaded.” State v. Torres, 1970-NMCA-017, ¶ 23, 81 N.M. 521, 469

6 P.2d 166. Thus, standing in this context applies to an individual seeking the

7 vindication of a personal right violated by the government’s acts; therefore, standing

8 is not an obstacle to a court ensuring that constitutional processes are followed in the

9 course of the prosecution. Rule 5-212(A) comm. cmt. (“The aggrieved person under

10 Paragraph[] A . . . of this rule is the person who has standing to raise the issue.”).

11 The State contends that the district court lacked authority under Rule 5-212(A)

12 to order a suppression hearing on its own motion because it is not an “aggrieved”

13 party. The State interprets Rule 5-212(A) as conferring standing only to parties

14 affected by the alleged rights violation. However, the State appears to confuse the

15 authority of a court with the requirement that a litigant must have standing to bring

16 a particular claim. A court does not have to be an aggrieved party to ask for analysis

17 on an apparent constitutional infirmity that resulted in evidence that forms the basis

18 of the prosecution against the accused. Rule 5-212(A) does not suggest that only

19 aggrieved persons may move for suppression of evidence. The Rule is silent as to

7
1 whether a court may initiate a hearing on its own motion, and the State fails to

2 provide any authority that the standing requirement in this rule applies to the court.

3 Further, the district court is not initiating a hearing to vindicate a right for its benefit,

4 but for the right of Defendant, who has standing to contest the warrantless search.

5 Second, accepting the State’s logic would preclude sua sponte appellate

6 review in other contexts where no formal statutory grant of authority exists. For

7 example, this Court has noted, “[A]s a general rule, propositions of law not raised in

8 the trial court cannot be considered sua sponte by the appellate court.” State v. Jade

9 G., 2007-NMSC-010, ¶ 24, 141 N.M. 284, 154 P.3d 659 (internal quotation marks

10 and citation omitted). However, there are “exceptions to that rule . . . [including]

11 where it is necessary . . . to protect the fundamental rights of the party.” Id. (internal

12 quotation marks and citation omitted). These exceptions are not founded in statute.

13 Thus, the State’s reasoning would suggest that absent a grant by statute or rule, an

14 appellate court would not have authority to review an issue not presented by the

15 parties.

16 Finally, the State’s argument does not consider that district courts are

17 conferred authority under Article VI of the New Mexico Constitution, which

18 provides that district courts are courts of “original jurisdiction in all matters and

19 causes not excepted in [the New Mexico Constitution], and such jurisdiction of . . .

8
1 proceedings as provided by law.” N.M. Const. art. VI, § 13; Smith v. S. Union Gas

2 Co., 1954-NMSC-033, ¶ 10, 58 N.M. 197, 269 P.2d 745 (“[T]he district court gets

3 its jurisdiction from the [New Mexico] Constitution.”). The State’s discussion

4 focuses solely on jurisdiction as established through statute under Rule 5-212(A),

5 although the State acknowledges that “[a] court’s jurisdiction derives from a statute

6 or constitutional provision.” State v. Rudy B., 2010-NMSC-045, ¶ 14, 149 N.M. 22,

7 243 P.3d 726 (emphasis added). As this Court has noted, “There is a presumption of

8 jurisdiction, in the absence of proof to the contrary, in courts of general jurisdiction.”

9 Marchman v. NCNB Tex. Nat’l. Bank, 1995-NMSC-041, ¶ 27, 120 N.M. 74, 898

10 P.2d 709. Therefore, the district court did not lack jurisdiction because a court does

11 not have to meet the standing requirements under Rule 5-212(A), and a district court

12 has adequate constitutional authority to order a suppression hearing on its own

13 motion.

14 B. Certified Question Two: Did the district court lack jurisdiction to raise
15 claims of constitutional violations [in raising the suppression issue]
16 because the district court exists to decide issues presented to it?

17 No. We hold that district courts have inherent authority to raise the issue of

18 suppression for warrantless searches. The State argues that the district court as the

19 trier of fact “exist[s] to decide disputes presented to it, not to raise its own disputes”

20 and therefore lacks jurisdiction to raise suppression issues sua sponte. This argument

9
1 is unpersuasive for three reasons. First, the broad language in New Mexico case law

2 does not limit to appellate courts the authority to sua sponte review violations of a

3 defendant’s fundamental rights. Second, a warrantless search and seizure is

4 presumptively unreasonable and may implicate a defendant’s fundamental rights.

5 State v. Rowell, 2008-NMSC-041, ¶ 10, 144 N.M. 371, 188 P.3d 95; see Vargas,

6 2017-NMSC-029, ¶ 14 (acknowledging appellate courts’ discretion to review

7 unpreserved issues of illegal search and seizure involving parties’ fundamental

8 rights). Third, the district court did not engage in sua sponte decision making

9 because the district court’s action in raising the suppression issue initiated briefing

10 and provided an opportunity for both parties to be heard. This Court reviews the

11 district court’s jurisdictional authority to initiate a suppression hearing de novo. State

12 v. Martinez, 2022-NMSC-004, ¶ 5, 503 P.3d 313.

13 To begin, the State fails to provide any argument for affording appellate courts

14 the authority to sua sponte review violations of fundamental rights while

15 simultaneously restricting the authority of district courts. The broad language in New

16 Mexico case law does not reserve to appellate courts the authority of courts to sua

17 sponte review violations of a defendant’s fundamental rights. The district court’s

18 Suppression Order cites holdings that implicate the general authority of appellate

19 and district courts to raise issues sua sponte. Id. ¶ 26 (acknowledging a district

10
1 court’s inherent authority to review sufficiency of the evidence on its own motion);

2 Vargas, 2017-NMSC-029, ¶¶ 14-15 (affirming a Court of Appeals decision where it

3 raised and decided a Fourth Amendment issue sua sponte without additional

4 briefing).

5 The holdings cited by the district court refer generally to “courts” or

6 “judiciary” rather than to an “appellate court” specifically or by using other limiting

7 language. State ex rel. Quintana v. Schnedar, 1993-NMSC-033, ¶ 3, 115 N.M. 573,

8 855 P.2d 562 (“There is no doubt that the judiciary has the inherent authority to

9 guarantee the enforcement of constitutional civil liberty protections in criminal

10 prosecutions.” (emphasis added)); State v. Cruz, 2021-NMSC-015, ¶ 1, 486 P.3d 1

11 (“At every level of our courts, the Constitution must stand as an immovable bulwark

12 to secure the rights of individuals in every case.” (emphasis added)), reh’g denied

13 (Apr. 23, 2021).

14 For more than one hundred years this Court has recognized the authority of

15 courts to act to protect a defendant’s fundamental rights. See State v. Garcia, 1914-

16 NMSC-065, ¶ 18, 19 N.M. 414, 143 P. 1012 (on motion for rehearing) (“There exists

17 in every court . . . an inherent power to see that a man’s fundamental rights are

18 protected in every case.” (emphasis added)). This Court recently confirmed this

19 principle, providing that New Mexico’s Rules of Criminal Procedure “are applied

11
1 with an understanding of a court’s ‘inherent power to see that a [defendant’s]

2 fundamental rights are protected in every case’ and that ‘[every] court has the power,

3 in its discretion, to relieve [a defendant of the error] and to see that injustice is not

4 done.’” Martinez, 2022-NMSC-004, ¶ 6 (alterations in original) (emphasis added)

5 (quoting State v. Cunningham, 2000-NMSC-009, ¶ 12, 128 N.M. 711, 988 P.2d

6 176).

7 New Mexico courts have inherent authority over a host of other matters.

8 Belser v. O’Cleireachain, 2005-NMCA-073, ¶ 9, 137 N.M. 623, 114 P.3d 303 (“The

9 district court has the inherent authority, in its discretion, to dismiss a case for failure

10 to prosecute.” (internal quotation marks and citation omitted)); State ex rel. N.M.

11 State Highway & Transp. Dep’t v. Baca, 1995-NMSC-033, ¶ 11, 120 N.M. 1, 896

12 P.2d 1148 (“[T]rial and appellate courts must have inherent power to impose a

13 variety of sanctions on both litigants and attorneys.” (internal quotation marks and

14 citation omitted)). This power includes a district court’s authority to raise various

15 issues sua sponte. See State v. Balderama, 2004-NMSC-008, ¶ 20, 135 N.M. 329,

16 88 P.3d 845 (“[A] judge is not prohibited from excluding evidence sua sponte.”); see

17 also Martinez, 2022-NMSC-004, ¶ 1 (clarifying that a district court also has inherent

18 authority to raise, on its own motion, issues of sufficiency of the evidence

19 postverdict).

12
1 Further expanding upon a district court’s authority, this Court in Grogan held

2 that a trial court may find ineffective assistance of counsel without providing the

3 parties an opportunity to be heard on the issue. State v. Grogan, 2007-NMSC-039,

4 ¶ 1, 142 N.M. 107, 163 P.3d 494. Indeed, it seems incongruous to allow a court to

5 both raise and decide a Sixth Amendment ineffective assistance of counsel issue

6 without a hearing, like in Grogan, and not allow the same court to request a hearing

7 and briefing to review a search by law enforcement that was, “‘without prior

8 approval by judge or magistrate, [and thus] per se unreasonable,’ subject only to

9 well-delineated exceptions.” Rowell, 2008-NMSC-041, ¶ 10 (quoting Katz v. United

10 States, 389 U.S. 347, 357 (1967)).

11 Given the fact-intensive nature of a suppression hearing, the trial court is best

12 situated to initiate a hearing and allow the parties the opportunity to cross-examine

13 witnesses and introduce evidence. In addition, absent an objection to the search, a

14 defendant’s claim of error on appeal would be subject to appellate review under the

15 strict standard of fundamental error or would risk the issue remaining unaddressed

16 by appellate courts. Vargas, 2017-NMSC-029, ¶¶ 13-15; see also State v. Varela,

17 1999-NMSC-045, ¶¶ 11, 25, 128 N.M. 454, 993 P.2d 1280; Rule 12-321(A),

18 (B)(2)(c) NMRA; Rule 5-212(C).

13
1 Finally, the district court did not engage in decision making without a full

2 opportunity for the parties to present their argument. When there is a warrantless

3 search, the State bears the burden to overcome the presumption that a warrantless

4 search is unreasonable. Rowell, 2008-NMSC-041, ¶ 10. Here, the district court’s

5 actions allowed the prosecution the opportunity to meet its burden to demonstrate

6 that the warrantless search was nevertheless reasonable. The district court held a

7 thorough evidentiary hearing and requested follow-up briefing, which the State and

8 Defendant provided. Only then did the district court make an evidentiary

9 determination. Ultimately, requesting briefing and review is substantially distinct

10 from and less problematic than sua sponte decision making where parties lack an

11 opportunity to be heard. Square D Co. v. Niagara Frontier Tariff Bureau, Inc., 760

12 F.2d 1347, 1365 (2d Cir. 1985) (“The district court has no authority to dismiss a

13 complaint . . . without giving the plaintiff an opportunity to be heard.”), aff’d, 476

14 U.S. 409 (1986).

15 Therefore, we hold that district courts have jurisdiction to raise the issue of

16 suppression for warrantless searches. The district court did not tip the scale of

17 justice; the court merely ensured its balance. See State v. Crump, 1981-NMSC-134,

18 ¶ 11, 97 N.M. 177, 637 P.2d 1232 (“The trial judge is properly governed by the

19 interest of justice and truth.” (internal quotation marks and citation omitted)).

14
1 C. Certified Question Three: Did the district court’s actions violate
2 separation of powers?

3 No. The district court did not violate the separation of powers doctrine when

4 it sua sponte raised the suppression issue. This Court reviews preserved

5 constitutional claims de novo. State v. Tafoya, 2010-NMSC-019, ¶ 24, 148 N.M.

6 391, 237 P.3d 693. Article III Section 1 of the New Mexico Constitution explicitly

7 provides for the separation of powers of the legislative, executive, and judicial

8 branches. Our jurisprudence acknowledges that “[t]he constitutional doctrine of

9 separation of powers allows some overlap in the exercise of governmental function.”

10 State ex rel. Clark v. Johnson, 1995-NMSC-048, ¶ 32, 120 N.M. 562, 904 P.2d 11

11 (internal quotation marks and citation omitted). “This common sense approach

12 recognizes that the absolute separation of governmental functions is neither desirable

13 nor realistic.” Id.

14 “[T]he executive branch executes the laws.” N.M. Bldg. & Constr. Trades

15 Council v. Dean, 2015-NMSC-023, ¶ 7, 353 P.3d 1212. “[T]he judiciary has the

16 power to enforce and interpret constitutional provisions.” State v. Brown, 1998-

17 NMSC-037, ¶ 61, 126 N.M. 338, 969 P.2d 313 (emphasis added). Indeed, it is “[t]he

18 essence of judicial power [to have] final authority to render and enforce a judgment.”

19 State ex rel. N.M. Jud. Standards Comm’n v. Espinosa, 2003-NMSC-017, ¶ 13, 134

20 N.M. 59, 73 P.3d 197; Bd. of Educ. of Carlsbad Mun. Schs. v. Harrell, 1994-NMSC-

15
1 096, ¶ 47, 118 N.M. 470, 882 P.2d 511. But neither execution nor enforcement are

2 genuinely at issue here because the district court merely ordered briefing and a

3 hearing for a presumptively unconstitutional search, requiring the State to meet its

4 burden to prove reasonableness. The court’s actions do not “prevent[ the executive]

5 branch from accomplishing its constitutionally assigned functions,” State ex rel.

6 Taylor v. Johnson, 1998-NMSC-015, ¶¶ 23, 25, 125 N.M. 343, 961 P.2d 768, unless

7 the State alleges that it is acknowledged that one of these functions is to enter a house

8 without a warrant. Further, ordering a hearing does not infringe on the defense

9 counsel’s role as advocate. Defendant here did not waive her Fourth Amendment

10 protections, and if she had and the waiver was overridden by the district court, our

11 analysis might be different.

12 For these reasons, the district court’s order for a hearing and briefing on the

13 suppression issue does not violate separation of powers.

14 D. Certified Question Four: Was the district court’s only recourse to raise
15 ineffective assistance of counsel against defense attorneys who failed to
16 properly raise suppression issues?

17 No. While ineffective assistance of counsel is a valid recourse, it is not the

18 only one available to the district court. The State’s briefing failed to develop an

19 argument as to why the district court’s inquiry into ineffective assistance of counsel

16
1 was the only recourse available to the district court, and we hold the district court

2 may exercise discretion in determining which recourse to pursue.

3 A district court’s decision⸻whether to address indigent counsel’s failure to

4 properly move for suppression by issuing a sua sponte order for a suppression

5 hearing or instead by inquiring into counsel’s ineffective assistance⸻is reviewed for

6 abuse of discretion. “An abuse of discretion occurs when the ruling is clearly against

7 the logic and effect of the facts and circumstances of the case.” State v. Otto, 2007-

8 NMSC-012, ¶ 9, 141 N.M. 443, 157 P.3d 8 (internal quotation marks and citation

9 omitted).

10 As noted by the district court’s Suppression Order, a court may decide that

11 ineffective assistance of counsel is not the appropriate recourse in rural areas where

12 reassignment is “often futile” due to a limited number of attorneys or where

13 prosecutorial pressure discourages defense attorneys from bringing suppression

14 issues. Further, a district court may decline to pursue ineffective assistance of

15 counsel as a recourse because it is a claim “best addressed in a habeas corpus

16 proceeding.” State v. Astorga, 2016-NMCA-015, ¶ 25, 365 P.3d 53. We suggest a

17 trial court may first take other intermediate steps, like instructing defense counsel

18 that they are obligated to consult with a superior, before proceeding with a case

19 ordering substitute counsel. Therefore, while ineffective assistance of counsel is a

17
1 valid recourse, it is not the only one available to the district court, and a district court

2 judge may exercise discretion as to which recourse to pursue.

3 E. Certified Question Five: Did the district court’s actions and statements
4 demonstrate bias or create the appearance of bias?

5 No. The district court’s actions in sua sponte ordering a suppression hearing

6 did not inherently implicate bias or the appearance of bias. We revisit this authority

7 as framed by potential concerns for actual or apparent bias. The State argues the

8 district court exhibited bias by stating that the warrantless search appeared to be

9 unreasonable, thereby shifting the burden to the prosecution to prove the search was

10 reasonable. Additionally, the State argues that there was either actual bias or the

11 appearance of bias because the district court sua sponte raised suppression issues in

12 thirty cases.

13 Of the arguments raised in this proceeding, bias is the most concerning. We

14 acknowledge that there are facts from the trial that warrant inspection. However, a

15 series of procedural decisions hinder our review. First, the State did not raise the

16 issue of bias before the trial court and, therefore, failed to preserve the claim for our

17 review. See S. Union Gas Co. v. Taylor, 1971-NMSC-067, ¶ 11, 82 N.M. 670, 486

18 P.2d 606 (refusing to review claims of judicial bias that are not preserved in the

19 record). We would typically review recusal or disqualification under an abuse of

20 discretion standard, but no such request was made to the district court. State v.

18
1 Riordan, 2009-NMSC-022, ¶ 6, 146 N.M. 281, 209 P.3d 773; see also State v.

2 Hernandez, 1993-NMSC-007, ¶ 44, 115 N.M. 6, 846 P.2d 312 (holding that the

3 judge’s conduct did not implicate bias where the defendant did not raise a claim for

4 bias “until after an adverse ruling”). Second, the State’s briefing before this Court

5 was sparingly developed, citing only the Code of Judicial Conduct. See Rule 21-102

6 NMRA. This Court does not address claims that are not thoroughly briefed or

7 developed. Elane Photography, LLC v. Willock, 2013-NMSC-040, ¶ 70, 309 P.3d

8 53 (holding that the Court will not entertain unclear or undeveloped arguments); see

9 also Rule 12-318(4)-(5) (prescribing details of the arguments and conclusion of an

10 appellate brief in chief). Third and perhaps most important is failure of the State’s

11 briefing before this Court to make a specific request for relief based on the alleged

12 bias and any grounds under which relief would be sought. 3 See Rule 12-318(4)-(5).

13 We infer the State is implying that the district court’s conduct amounted to

14 either impropriety, impartiality, or both. Because there are other cases held in

15 abeyance, we address the claim of bias as a matter of law and discuss the facts of

3
In a footnote, the State cites a dispositional order where this Court remedially
remanded a proceeding to a pro tem judge, but the State does not explicitly suggest
that a similar outcome is warranted here. Because the district court judge has since
retired from judicial service, whether the State may request a pro tem judge is moot.

19
1 this case only to the extent that we believe it can provide context to the Court of

2 Appeals on remand. 4

3 A judge’s objectivity is in issue when “an objective, disinterested observer,

4 fully informed of the underlying facts, would entertain significant doubt that justice

5 would be done absent recusal.” Riordan, 2009-NMSC-022, ¶¶ 11, 14 (brackets,

6 internal quotation marks, and citation omitted). The “bias must be personal” to the

7 case, State v. Fernandez, 1994-NMCA-056, ¶ 17, 117 N.M. 673, 875 P.2d 1104, and

8 “[p]ersonal bias cannot be inferred from an adverse ruling,” Hernandez, 1993-

9 NMSC-007, ¶ 44. The metric for impartiality is whether an objective, disinterested

10 observer would have doubts that justice could be served absent the judge’s recusal.

11 See Riordan, 2009-NMSC-022, ¶¶ 11, 14. Thus, while the district court may have

12 sua sponte raised the issue of suppression, that alone is insufficient to prove bias.

13 “The test for appearance of impropriety is whether the conduct would create

14 in reasonable minds a perception that the judge violated [the Code of Judicial

15 Conduct] or engaged in other conduct that reflects adversely on the judge’s honesty,

16 impartiality, temperament, or fitness to serve as a judge.” Rule 21-102 cmt. (5). The

4
We note that any determination on bias, outside of the common element that
the district judge sua sponte moved for a suppression hearing, would require separate
factual analysis for each of the cases held in abeyance. Therefore, even if briefing
was sufficient to allow us to review the facts of this case, a bias determination in this
case would not necessarily apply to the cases held in abeyance.

20
1 district court’s conduct here did not rise to the level of improper conduct as to violate

2 Rule 21-102 of the Code of Judicial Conduct. To the extent the State argues that the

3 district court judge was not impartial, “[t]he alleged bias and prejudice . . . must stem

4 from an extrajudicial source and result in an opinion on the merits on some basis

5 other than what the judge learned from his participation in the case.” United Nuclear

6 Corp. v. Gen. Atomic Co., 1980-NMSC-094, ¶ 418, 96 N.M. 155, 629 P.2d 231

7 (internal quotation marks and citation omitted). An extrajudicial source “concerns

8 the origin of the judge’s bias rather than the place of its expression. . . . However, if

9 a judge’s statements or conduct during a trial refer to or reflect bias or prejudice . . .

10 outside of [the judge’s] judicial duties, then the extrajudicial source rule is satisfied

11 and recusal may be required.” Id. ¶ 421 n.159.

12 As it relates to bias, we discuss (1) whether the district court inappropriately

13 shifted the burden to the prosecution when it ordered a hearing to review the

14 warrantless search and (2) whether the district court implicated bias by ordering

15 suppression hearings across thirty cases. First, the district court’s order for a

16 suppression hearing, stating the warrantless search appeared to be unreasonable, did

17 not shift the burden to the State to provide reasonableness of the search. Without

18 prior approval by a judge or magistrate, a warrantless search is “per se unreasonable,

19 . . . and the state bears the burden of proving reasonableness.” Rowell, 2008-NMSC-

21
1 041, ¶ 10 (internal quotation marks and citations omitted). Here, the affidavit clearly

2 indicates that the initial search was conducted without a search warrant. Bias cannot

3 be inferred solely from a judge’s recognition of the constitutional norm: that the

4 search was per se unreasonable, and the prosecution must prove the search was

5 reasonable under one of the limited exceptions. Rowell, 2008-NMSC-041, ¶ 10.

6 Here, the State makes no argument that the search was not presumptively

7 unreasonable, only that it was justified “under the emergency assistance doctrine”

8 exception which, the district court ultimately held, did not “justif[y] the officers’

9 warrantless entry.”

10 Second, regarding the district court’s statement that there was a systemic

11 “pattern and practice by one municipal police department of violating indigent

12 citizens’ right to be free from unreasonable search and seizure” (emphasis added),

13 we acknowledge that this does not carry with it the ideal of neutrality. However, the

14 State did not rebut this statement, and our review of other cases where the judge sua

15 sponte raised the suppression issue does suggest a pattern of violation.

16 Additionally, the State’s Docketing Statement claims that the “district court

17 has suppressed in [one-hundred percent] of the cases in which it filed Hearing Orders

18 and. . . that the State did not dismiss.” While this fact is more suggestive of bias, it

19 does not reach the required threshold of impartiality. There is no evidence suggesting

22
1 the actions of the district court in ordering the review of thirty cases (representing

2 twenty percent of the district court judge’s criminal docket) reflect the type of

3 pernicious dishonesty Rule 21-102 is meant to address. Heeter v. Heeter, 1992-

4 NMCA-032, ¶ 15, 113 N.M. 691, 831 P.2d 990 (“This [C]ourt will not search the

5 record to find evidence to support an appellant’s claims.”).

6 We recognize the importance of a judge being a neutral third party and the

7 importance of the effects the appearance of bias can have on the judiciary. We also

8 recognize “a court’s inherent power to see that a defendant’s fundamental rights are

9 protected in every case.” Martinez, 2022-NMSC-004, ¶ 6 (brackets, internal

10 quotation marks and citation omitted). This is especially true in environments where

11 vulnerable populations experience repeated and unaddressed constitutional

12 violations. Limiting the appearance of bias, even when defending fundamental

13 rights, is paramount to maintaining judicial integrity. This holding does not create a

14 duty or incentivize courts to “sally forth each day looking for wrongs to right.”

15 Greenlaw v. United States, 554 U.S. 237, 244 (2008) (citation omitted). Our holding

16 is limited to a district court’s authority to order a suppression hearing when a

23
1 presumptively unconstitutional search or seizure is at issue. 5 On the one hand, “a

2 judge should exercise this authority sparingly . . . [and] should be careful to avoid

3 the appearance of being more of an advocate or partisan than an objective jurist.”

4 Balderama, 2004-NMSC-008, ¶ 20 (recognizing a trial judge’s authority to exclude

5 evidence sua sponte). However, we also note that our holding should not be read as

6 creating a rule that restricts the inherent authority of courts to raise suppression

7 issues only in isolated contexts, allowing systemic abuses to persist due to their

8 repetitive nature.

9 F. Certified Question Six: Did the district court err in entering suppression
10 orders based on evidence presented at the hearing because the initial
11 hearing orders lacked particularity and the State was therefore unable to
12 adequately prepare?

13 No. The district court’s Hearing Order provided sufficient particularity to

14 notify the State and allow the State to adequately prepare for the hearing. The State

15 argued that the district court’s Hearing Order included a “generalized allegation of

16 a rights violation” that did not satisfy the particularity normally required in an

5
This authority does not extend to a sua sponte challenge of a search issued
with a warrant, which is presumptively reasonable. In its Hearing Order, the district
court appears to prejudge a presumptively reasonable search with a warrant. This
error may justify the designation of a pro tem judge in similar cases. However, as
previously noted, the suggested remedy of a pro tem appointment may not be
applicable to these cases where the judge has resigned.

24
1 aggrieved party’s motion to suppress and thus greatly disadvantaged the State, who

2 was “unable to adequately prepare for the hearing.” Contrary to Rule 12-318 (4)-(5),

3 the State’s Brief in Chief did not provide the applicable standard of review, the

4 relevant authority, or the relief sought. As a result, we only address the legal question

5 of the level of particularity required for a district court’s sua sponte order for a

6 suppression hearing.

7 We review the particularity requirements for a sua sponte order for a

8 suppression hearing de novo. See LeMaster, 2012-NMSC-001, ¶ 11 (requiring de

9 novo review of questions on proper interpretation of the New Mexico Rules of

10 Criminal Procedure). Requirements for a motion to suppress are outlined in Rule 5-

11 212. Further, Rule 5-120(A) NMRA provides that a written motion “shall state with

12 particularity the grounds therefor, and shall set forth the relief or order sought.” New

13 Mexico case law has held a defendant’s motion to suppress to this standard. See State

14 v. Goss, 1991-NMCA-003, ¶ 13, 111 N.M. 530, 807 P.2d 228. This requirement is

15 based on the need for “specificity in the statement of [a] defendant’s legal theory.”

16 Id. (citation omitted). The Court of Appeals has interpreted this particularity

17 requirement to indicate “a motion claiming ‘there was no probable cause to arrest’

18 could be sufficient.” State v. Esguerra, 1991-NMCA-147, ¶ 17, 113 N.M. 310, 825

19 P.2d 243 (internal quotation marks and citation omitted).

25
1 Rule 5-121 NMRA, which governs a district court’s preparation and entry of

2 orders, does not mandate a requirement of particularity. However, this Court has

3 previously held a trial judge to the standards of counsel where a trial judge sua sponte

4 excluded evidence during a trial. Balderama, 2004-NMSC-008, ¶ 20 (“Our rules of

5 evidence require no less of counsel who object to the admissibility of evidence, . . .

6 and we see no reason why the same procedural rules should not apply to a trial judge

7 who seeks to exclude evidence sua sponte.”). The Balderama Court explained the

8 purpose of imputing such a requirement, which permits the district court to “afford

9 the proponent of the evidence a fair opportunity to respond to the court’s concerns

10 and to make the necessary offer of proof prior to the sua sponte ruling.” Id.

11 Here, where a district court judge sua sponte orders a suppression hearing, the

12 State cannot avail itself of the benefit of particularity that it would have received had

13 Defendant brought the motion. Having recognized the requirements of particularity

14 for defendants, in accord with our previous imputation of counsel’s duties to a court

15 in a sua sponte ruling, we conclude that the district courts must also provide

16 particularity in their orders when sua sponte ordering a suppression hearing. Similar

17 to Balderama, such a holding would guarantee a fair opportunity to respond to the

18 district court’s concerns prior to the issuance of an order of suppression.

26
1 CONCLUSION

2 We remand the six certified cases to the Court of Appeals to decide this case

3 and the five cases held in abeyance in accord with this opinion.

4 IT IS SO ORDERED.

5
6 DAVID K. THOMSON, Chief Justice

7 WE CONCUR:

8
9 MICHAEL E. VIGIL, Justice

10
11 C. SHANNON BACON, Justice

12
13 JULIE J. VARGAS, Justice

14 BRIANA H. ZAMORA, Justice, dissenting

15

27
1 ZAMORA, Justice (dissenting).

2 In our adversary system, in both civil and criminal cases, in the first
3 instance and on appeal, we follow the principle of party presentation.
4 That is, we rely on the parties to frame the issues for decision and assign
5 to courts the role of neutral arbiter of matters the parties present. . . .
6 Our adversary system is designed around the premise that the parties
7 know what is best for them, and are responsible for advancing the facts
8 and arguments entitling them to relief.

9 Greenlaw v. United States, 554 U.S. 237, 243-44 (2008) (internal quotation marks

10 and citation omitted). Because district courts have inherent authority to ensure that

11 defendants’ fundamental rights are protected, maj. op. ¶¶ 14-19, I agree with the

12 majority’s determination that the district court acted within its authority when it

13 raised a concern about the searches in this case. See State v. Martinez, 2022-NMSC-

14 004, ¶ 6, 503 P.3d 313 (noting that “[every] court has the power, in its discretion, to

15 relieve [a defendant of the error] and to see that injustice is not done” (quoting State

16 v. Cunningham, 2000-NMSC-009, ¶ 12, 128 N.M. 711, 998 P.2d 176)). However, I

17 disagree with how the district court exercised its authority, as it strayed from its role

18 as neutral arbiter into the realm of advocacy. Specifically, after the district court

19 judge researched her entire court docket and selected cases she believed had infirm

20 searches and seizures, she sua sponte ordered suppression hearings in thirty cases

21 within a short period of time. In this case, the district court set the suppression

22 hearing after the deadline had passed to file motions to suppress and after the

28
1 scheduled trial date; it failed to properly apprise the parties of the purported grounds

2 for suppression; and the order setting the matter for a suppression hearing appeared

3 to prejudge the outcome of the hearing. Finally, the district court questioned the

4 State’s witnesses at the suppression hearing while defense counsel stood silent.

5 Notwithstanding the district court’s good intentions, these actions constituted an

6 abuse of the court’s discretion and created the appearance of bias or partiality. I

7 would therefore reverse the district court’s orders resulting from this flawed

8 procedure and remand with instructions to reassign these cases to a judge whose

9 impartiality may not reasonably be questioned. Accordingly, I respectfully dissent.

10 I. THE STATE WAIVED ARGUMENT ON THE CERTIFIED
11 QUESTIONS CONCERNING SEPARATION OF POWERS,
12 INEFFECTIVE ASSISTANCE OF COUNSEL, AND THE
13 PARTICULARITY REQUIREMENTS OF THE DISTRICT COURT’S
14 ORDER

15 As a preliminary matter, I agree with the majority that the State waived its

16 argument on Question 3 (whether the district court’s actions violated separation of

17 powers), Question 4 (whether the district’s court’s sole recourse was to raise

18 ineffective assistance of counsel against attorneys who failed to raise suppression

19 issues), and Question 6 (whether the district court erred in entering suppression

20 orders because the initial hearing orders lacked sufficient particularity and failed to

21 provide sufficient notice) in the Certification Order by either failing to adequately

29
1 brief them or to brief them at all. Maj. op. ¶ 7. 6 However, unlike the majority, I

2 would not have decided the questions the State waived. We “risk overlooking

3 important facts or legal considerations” when we reach issues without the benefit of

4 briefing by the parties. N.M. Dep’t of Hum. Servs., Income Support Div. v. Tapia,

6
The majority addresses the first question as it was framed by the Certification
Order—namely, whether “the district court lacked jurisdiction to sua sponte raise
the suppression issue because it is not ‘aggrieved’ by the alleged violation of rights.”
Order of Certification to the New Mexico Supreme Court, State v. Vasquez, A-1-
CA-40228, at 4 (N.M. Ct. App. June 30, 2022) (emphasis added). But this framing
conflates standing with jurisdiction. Standing under the Fourth Amendment
concerns the right of a person to challenge a search as unreasonable, while
jurisdiction concerns the power of a court to preside over parties and matters. See
generally Terrence Byrd v. United States, 584 U.S. 395, 410 (2018) (cautioning
against conflating jurisdictional “standing” with Fourth Amendment “standing,”
which “can be a useful shorthand for capturing the idea that a person must have a
cognizable Fourth Amendment interest in the place searched before seeking relief
for an unconstitutional search”). I fear that the majority’s discussion obscures this
distinction by stating that “Rule 5-212(A) NMRA does not suggest that only
aggrieved persons may move for suppression of evidence.” Maj. op. ¶ 11. To the
contrary, Fourth Amendment jurisprudence is clear that the right to challenge a
search as unreasonable is personal in nature and that it “may be enforced by
exclusion of evidence only at the instance of one whose own protection was
infringed by the search and seizure.” Simmons v. United States, 390 U.S. 377, 389
(1968) (emphasis added). Additionally, the majority concludes its analysis by stating
that “the district court did not lack jurisdiction because a court does not have to meet
the standing requirements under Rule 5-212(A) and a district court has adequate
constitutional authority to order a suppression hearing on its own motion.” Maj. op.
¶ 13 (emphasis added). I caution that, in so stating, the majority improperly suggests
that the district court’s jurisdiction might be dependent upon a standing requirement
found outside of the rule. Because the jurisdiction of a district court is not dependent
on any demonstration of Fourth Amendment standing, I depart from this language
in the majority’s opinion.

30
1 1982-NMSC-033, ¶ 11, 97 N.M. 632, 642 P.2d 1091; see Elane Photography, LLC

2 v. Willock, 2013-NMSC-040, ¶ 70, 309. P.3d 53 (stating, “To rule on an inadequately

3 briefed issue, this Court would have to develop the arguments itself, effectively

4 performing the parties’ work for them,” thereby “creat[ing] a strain on judicial

5 resources and a substantial risk of error.”). Where, as here, the questions before us

6 are novel, this principle applies with extra force. Tapia, 1982-NMSC-033, ¶ 11.

7 II. THE DISTRICT COURT HAD THE AUTHORITY TO RAISE
8 CONCERNS ABOUT THE SEARCHES IN THIS CASE

9 The district court in this case was concerned that Defendant was receiving

10 representation that failed to protect her fundamental right to be free from

11 unreasonable searches and seizures. The court was specifically concerned that

12 Defendant had been subjected to unlawful searches that her attorney had failed to

13 contest on her behalf. I agree with the majority that the district court had the inherent

14 authority to raise these concerns with the parties and to seek assurances that

15 Defendant’s fundamental rights were being protected.

16 For example, the district court would have been within its discretion—as a

17 function of this authority—to call a status conference with the parties and to inquire

18 of defense counsel whether he intended to challenge the searches. See Rule 5-603(D)

19 NMRA (“[T]he court may order the attorneys to appear before it for a hearing, at

20 which the defendant shall have the right to be present, to consider . . . such other

31
1 matters as may aid in the disposition of the trial.”). Alternatively, the district court

2 could have inquired into whether Defendant desired substitute counsel, reported

3 concerns about defense counsel to his supervisor, or made a report to the state’s

4 Disciplinary Board about defense counsel’s persistently deficient performance. See

5 State v. Lewis, 1986-NMCA-090, ¶ 17, 104 N.M. 677, 726 P.2d 354 (stating that the

6 decision to appoint substitute counsel on grounds of ineffective assistance is within

7 the trial court’s discretion); Rule 16-803(A) NMRA (“A lawyer who knows that

8 another lawyer has committed a violation of the Rules of Professional Conduct that

9 raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness

10 as a lawyer in other respects shall inform the New Mexico Disciplinary Board.”). 7

11 Had the district court undertaken any or all of these measures, it would have acted

12 well within its discretion.

13 III. THE DISTRICT COURT ABUSED ITS DISCRETION BY
14 ORDERING A SUPPRESSION HEARING AND ADJUDICATING
15 THE SUPPRESSION ISSUES IN THIS CASE

16 But I disagree that the district court had the authority to sua sponte order a

17 suppression hearing in this case—much less to simultaneously order thirty

18 suppression hearings in thirty cases the judge proactively selected from her docket.

The district court’s order suppressing evidence in the case before us
7

demonstrates that it understood these options were available.

32
1 Maj. op. ¶¶ 19-22. The parties’ role is to bring forth issues and claims, while the

2 judge must act as a neutral arbiter in adjudicating them and in presiding over the

3 proceeding. See generally Jeffery M. Anderson, The Principle of Party Presentation,

4 70 Buff. L. Rev. 1029 (2022). Taken as a whole, the district court’s actions in this

5 case amounted to advocacy and not impartial adjudication.

6 Although this is an issue of first impression in New Mexico, courts in other

7 jurisdictions have held that district courts lack the authority to sua sponte order

8 suppression hearings or to raise suppression arguments that have not been raised by

9 the parties. See Commonwealth v. Whiting, 767 A.2d 1083, 1087 (Pa. Super. Ct.

10 2001) (stating that “it was improper, and therefore an abuse of discretion for the trial

11 court to voluntarily raise this issue and rule upon it in [the defendant’s] favor where

12 [the defendant] never raised the issue in any suppression motion, let alone with

13 specificity and particularity”); State v. Tyson, 41 N.E.3d 450, 457 (Ohio App. 3d

14 2015) (holding that the trial court abused its discretion in sua sponte raising and

15 considering the duration of the defendant’s detention during a traffic stop when the

16 defendant did not raise it in his motion to suppress); State v. Joseph, 297 A.3d 490,

17 501 (R.I. 2023) (criticizing the district court for sua sponte raising the issue of racial

18 bias in a traffic stop and stating that “a trial justice should address those

19 considerations when they are argued and raised by defense counsel to support a

33
1 motion to suppress”); People v. Pimentel, 528 N.Y.S.2d 568, 570 (App. Div. 1988)

2 (stating that “it was improper for the court to sua sponte suppress [a weapon obtained

3 during a search], which was neither the subject of defendant’s motion to suppress

4 nor of his argument at the conclusion of the suppression hearing”); see also State v.

5 Land, 2014-Ohio-1877, ¶ 17 (Ct. App. 2014) (unpublished) (finding abuse of

6 discretion where the trial court sua sponte called for and conducted a suppression

7 hearing in violation of the principle of party presentation, and stating that, in so

8 doing, the court “overrode [the defendant’s express] waiver of his defense”); State

9 v. Jacobs, A14-1245 (Minn. Ct. App. Mar. 9, 2015) (unpublished) (concluding that

10 the district court erred by sua sponte considering a suppression issue that was not

11 raised in defendant’s motion to suppress because the state did not have notice of the

12 issue); State v. Poteat, CR. A. IN01-07-2086R1, ¶ 4 (Del. Super. Ct. Mar. 11, 2005)

13 (ORDER) (stating that “[t]he [c]ourt will not convene a suppression hearing sua

14 sponte” and that “[a] request to suppress evidence must be made in accordance with

15 [superior court rules]”), aff’d, 931 A.2d 437 (Del. Aug. 14, 2007); cf. State v.

16 Kindler, 370 P.3d 909, 913, 915 (2016) (finding abuse of discretion where the

17 district court’s “precipitous action in sua sponte directing a suppression hearing” to

18 occur “immediate[ly]” deprived defense counsel of the opportunity to develop

19 arguments and evidence).

34
1 I agree with these authorities and would reverse the district court in this case.

2 Doing so would discourage judicial conduct that, like the conduct in this case,

3 undermines the court’s neutrality and the proper functioning of the adversarial

4 system of justice. A brief review of the proceedings below demonstrates why

5 adherence to the principle of party presentation is so essential. “The ‘central precept’

6 of an adversarial system is that the combination of active litigants and passive,

7 neutral judges most likely produces results that are ‘acceptable both to the parties

8 and to society.’” Anderson, supra, at 1039 (citation omitted). In this case, the district

9 court undermined confidence in the outcome by usurping the role of advocate and

10 failing to maintain at least the appearance of neutrality. Sometime in 2021, the

11 district court judge became concerned that appointed counsel appearing in her

12 courtroom were, as a matter of course, failing to raise suppression issues. In

13 reviewing its docket, the district court identified thirty cases it believed had search

14 or seizure issues and (almost simultaneously) filed orders for suppression hearings

15 in all thirty cases, setting all of the hearings for two specific dates occurring about

16 six weeks later. The district court’s orders were generic, failing to identify facts or

17 authority relevant to any individual defendant’s case, and informing the parties that

18 they could submit optional briefing in advance of the hearings. Order of Certification

19 to the New Mexico Supreme Court, State v. Vasquez, A-1-CA-40228, at 3 n.1 (N.M.

35
1 Ct. App. June 30, 2022), (noting the order in Vasquez is “representative” of the

2 orders in the cases on appeal). In the case before us, the Order for Suppression

3 Hearing included a finding that the information contained in the affidavit for arrest

4 warrant indicated that “the search(es) and/or seizure(s) in this matter were

5 unreasonable . . . and that insufficient probable cause existed for a search warrant.”

6 Perhaps because the briefing was optional, the district court set no briefing schedule.

7 The record is unclear as to why the district court decided to issue orders in all

8 thirty cases at once and to schedule hearings on such a shortened timeline. In its

9 order suppressing the evidence in the case before us, the district court justified its

10 actions on the grounds of efficiency. But by failing to observe the principle that

11 issues should be raised and litigated by the parties, the district court short-circuited

12 the truth-finding process that lies at the heart of our adversarial system. This

13 disruption infected the proceedings.

14 First, the district court’s order established an unreasonable and confusing

15 timeline for the parties—made worse by requiring the parties to respond to thirty

16 different orders at once. In the case before us, the court initially set the suppression

17 hearing for a date occurring after the trial setting, contrary to the timeliness

18 requirement of Rule 5-212 NMRA for filing a motion to suppress. See Rule 5-212(C)

19 (requiring a motion to suppress be filed sixty days prior to trial unless, “upon good

36
1 cause shown, the trial court waives the requirement.”). Second, even if the district

2 court had authority to sua sponte set a hearing on the matter, its two-page order for

3 a suppression hearing failed to provide meaningful notice of the purported grounds

4 for suppression. Indeed, the order failed to identify which evidence might be subject

5 to suppression or which of the two searches conducted at Defendant’s home were

6 being challenged. See Rule 5-120(A) NMRA (requiring that a motion “state with

7 particularity the grounds therefor” and “set forth the relief or order sought”); see also

8 6 Wayne R. LaFave et al., Search & Seizure § 11.2(a), at 44 (6th ed. 2020) (noting

9 that “a motion to suppress should be as reasonably specific as possible under the

10 circumstances in order to give the state as much notice as possible of the contentions

11 it must be prepared to meet at the suppression hearing”). 8 This is not simply a matter

8
Because the State failed to brief the issue, I express no opinion on the certified
question of whether the lack of particularity in the district court’s order, on its own,
amounted to error (Question 6). Elane Photography, 2013-NMSC-040, ¶ 70 (stating
that “[t]o rule on an inadequately briefed issue, this Court would have to develop the
arguments itself, effectively performing the parties’ work for them,” thereby
“creat[ing] a strain on judicial resources and a substantial risk of error”). I raise the
lack of particularity in the order only to demonstrate how the district court’s decision
to order a hearing in the absence of a motion filed pursuant to our Rules deprived
the court of vital information in determining whether to suppress the State’s
evidence. See State v. Rivas, 2017-NMSC-022, ¶ 63, 398 P.3d 299 (Nakamura, J.,
specially concurring) (observing that the Rules of Criminal Procedure, including the
rules governing motions to suppress, “are intended to promote basic fairness in the
administration of justice”).

37
1 of fairness. The “[adversarial] system is premised on the well-tested principle that

2 truth—as well as fairness—is best discovered by powerful statements on both sides

3 of the question.” See Penson v. Ohio, 488 U.S. 75, 84 (1988) (internal quotation

4 marks and citation omitted). The district court’s role is not to search for or litigate

5 the issues in a case but to adjudicate the strength of the evidence and arguments that

6 have been presented by the parties. United States v. Sineneng-Smith, 590 U.S. 371,

7 376 (2020).

8 Third, by commandeering the parties’ presentation of the issues and evidence,

9 the district court appeared to place itself in the shoes of defense counsel,

10 compromising the neutrality that underlies our adversarial system of justice. This

11 appearance of partiality is reflected in the district court’s “finding” (before the

12 suppression hearings) that the evidence indicated that the searches in question were

13 unreasonable and that probable cause was lacking. See Reid v. N.M. Bd. of Exam’rs

14 in Optometry, 1979-NMSC-005, ¶ 7, 92 N.M. 414, 589 P.2d 198 (stating that “a fair

15 and impartial tribunal requires that the trier of fact be disinterested and free from any

16 form of bias or predisposition regarding the outcome of the case” (emphasis added)).

17 Similarly, after defense counsel essentially withdrew from the proceeding and

18 declined to cross-examine either of the State’s fact witnesses at the suppression

19 hearing, the district court took over and questioned them itself. See State v. Jiles,

38
1 663 N.W.2d 798, 809 (Wis. 2003) (cautioning that, in a suppression hearing, “[t]he

2 court must not permit itself to become . . . an advocate for one party” because to do

3 so “[does] not afford a reliable determination of [the issue]” (internal quotation

4 marks and citation omitted)).

5 It is plain that the district court was concerned about the possibility that

6 Defendant had been subjected to unreasonable searches in violation of the United

7 States Constitution. But it is equally plain that the way in which the court raised and

8 disposed of the suppression issue in this case failed to maintain the appearance of

9 neutrality. Society has a “legitimate expectation that judges maintain, in fact and

10 appearance, the conviction and discipline to resolve . . . disputes with detachment

11 and impartiality.” Liteky v. United States, 510 U.S. 540, 564 (1994) (Kennedy, J.,

12 concurring in the judgment). Here, the district court strayed into the role of advocate,

13 and its actions, taken together, evince an impermissible appearance of partiality. See

14 High Ridge Hinkle Joint Venture v. City of Albuquerque, 1994-NMCA-139, ¶ 40,

15 119 N.M. 29, 888 P.2d 475 (stating that “[i]n general, a judge should be disqualified

16 from deciding a matter if an objective observer would entertain reasonable questions

17 about the judge’s impartiality” (internal quotation marks and citation omitted)).

18 As I have said, the district court could have taken other actions when it

19 determined that Defendant was likely the subject of unreasonable searches and was

39
1 not being served by appointed defense counsel. What the district court could not do

2 is advocate for Defendant in the proceeding before it. “Justice should not only be

3 done, but should manifestly and undoubtedly be seen to be done.” High Ridge, 1994-

4 NMCA-139, ¶ 40 (quoting Liteky, 510 U.S. at 564 (Kennedy, J., concurring in the

5 judgment)). In my view, the district court’s actions amount to a clear departure from

6 the role of neutral arbiter in violation of the fundamental precepts of our adversarial

7 system. Accordingly, the order in this case should be reversed, and the matter should

8 be remanded to the district court and reassigned to a judge whose impartiality may

9 not reasonably be questioned. Because the majority concludes otherwise, I

10 respectfully dissent.

11
12 BRIANA H. ZAMORA, Justice

40