Rule 6-203. Arrests without a warrant; probable cause determination.

A. General rule. In all cases in which the arrest has been made without a warrant and the person has not been released upon some conditions of release, a probable cause determination shall be made to determine if a person shall remain in custody. The probable cause determination shall be made by a magistrate, metropolitan, or district court judge promptly, but in any event within forty-eight (48) hours after custody commences and no later than the first appearance of the defendant, whichever occurs earlier. The court may not extend the time for making a probable cause determination beyond forty-eight (48) hours. Saturdays, Sundays, and legal holidays shall be included in the forty-eight (48) hour computation, notwithstanding Rule 6-104(A) NMRA. B. Conduct of determination. The probable cause determination shall be nonadversarial and may be held in the absence of the defendant and of counsel. The showing of probable cause shall be based upon substantial evidence, which may be hearsay in whole or in part, provided there is a substantial basis for believing the source of the hearsay to be credible and for believing there is a factual basis for the information furnished. No witnesses shall be required to appear unless the court determines there is a basis for believing the appearance of one or more witnesses might lead to a finding that there is no probable cause. If the complaint and any attached statements fail to make a written showing of probable cause, an amended complaint or a statement of probable cause may be filed within forty-eight (48) hours after custody commences and no later than the first appearance of the defendant, whichever occurs earlier, with sufficient facts to show probable cause for detaining the defendant. C. Probable cause determination; conclusion. (1) No probable cause found. If the court finds that the complaint fails to establish probable cause to believe that the defendant has committed an offense and no amendment is filed with sufficient facts to show probable cause for detaining the defendant, the court shall order the immediate personal recognizance release of the defendant from custody pending further proceedings. The defendant’s release shall be subject only to the conditions that the defendant shall appear before the court as directed and shall not violate any federal, state, or local criminal law. The court shall not impose any additional conditions of release under Rule 6-401 NMRA. (2) Probable cause found. If the court finds that there is probable cause that the defendant committed an offense, the court shall make such finding in writing. If the court finds probable cause, the court shall review the conditions of release. If no conditions of release have been set and the offense is a bailable offense, the court may set conditions of release immediately or within the time required under Rule 6-401 NMRA.