Editor’s note: This story has been modified from its original version to clarify the history and purpose surrounding the Supreme Court’s order.

NEW MEXICO (KRQE) – The New Mexico Supreme Court has issued an order setting rules for releasing GPS monitoring data of accused criminals who are out of jail while awaiting trial. It comes roughly six months after state lawmakers passed a bill during the 2022 regular legislative session, codifying the rights for police to access the records.

The new rules force law enforcement to fill out a form to request access to criminal suspects GPS records. That information can then be delivered within hours, according to the courts.

“The court wanted to make sure that everybody who has GPS follows the rules the same way, so that law enforcement has one way to do things everywhere,” said Arthur Pepin, Director of New Mexico’s Administrative Office of the Courts. “Give them a one page form, make it as easy to apply as possible and get the records they need for public safety.

GPS monitoring data for criminal suspects sometimes comes as part of what are called “conditions of release,” or what could be described as a set of rules a suspect agrees to follow in exchange for being let out of jail until trial. In Bernalillo County, as many as 130 accused criminal defendants can be placed on GPS monitoring data, which is monitored by the Pretrial Services Division of the Second Judicial District Court.

An argument over accessing criminal suspects GPS monitoring records came to light in December 2021, when Bernalillo County District Attorney Raul Torrez filed a public records lawsuit against the Pretrial Services Division. As part of the lawsuit, the district attorney argued, in part, that his office was denied access to the records over “concerns about the criminal defendant’s privacy records access.”

Following the filing of that lawsuit, lawmakers passed New Mexico House Bill 68 during the 2022 regular session, ending in February 2022. The bill made several changes to the state’s criminal code. On the subject of criminal suspects GPS records, the bill explicitly included language stating a right for law enforcement to access GPS monitoring records for suspects on pretrial release.

“Any public entity that possesses or controls global positioning system data with respect to a defendant on pretrial release shall make that data available without a warrant to a law enforcement officer pursuant to an ongoing and pending criminal investigation for which there is reasonable suspicion to believe the data will be probative.”

New Mexico House Bill 68

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According to the text of the law, investigators may only request immediate access to the data if it involves an investigation of a specific set of “serious violent felony offenses.” Those include first degree murder; first or second degree human trafficking of a child; first degree felony child abuse; first or second degree sexual exploitation of a child; the use or brandishing of a gun while committing a felony; or causing a death or great body harm during a felony crime.

Spanning nine pages, the New Mexico Supreme Court’s amended order is essentially the first definitive rule set for requesting GPS data from Pretrial Services (PTS.) The order explicitly outlines definitions and administrative rules related to all of the data kept by PTS. It also declares “PTS records” as “confidential” as a “general rule,” stating that GPS records shall only be disclosed to law enforcement, and “shall not be provided prior to trial to any other individual or entity.”

While the Supreme Court’s order seemingly was designed to create a process for GPS record retrieval for law enforcement investigative purposes, the new order also outlines a process for retrieving GPS data from suspected criminals who are accused of new crimes while out on GPS monitoring. That applies to suspects who are subject to newly filed arrest warrants unrelated to the crime outlined in HB68.

According to the order, GPS data “for the week immediately preceding the issuance of the warrant shall be provided to law enforcement in accordance with standard operating procedures of the local courts and the AOC, when requested in writing, to support the execution of the arrest warrant.” Law enforcement is also required to fill out the same form and “certify that GPS data is needed to support the execution of the arrest warrant.”

District Attorney’s GPS Records Lawsuit

To be clear, the Supreme Court’s latest order diverges from the previously mentioned lawsuit filed by the office of Bernalillo County District Attorney Raul Torrez. The Supreme Court’s order is directed at the language included in House Bill 68. Meanwhile, Torrez’s lawsuit was filed in December 2021— before House Bill 68 was drafted, and took effect.

Because that lawsuit was filed before House Bill 68 was drafted, passed and enacted, a judge wrote in an August 1 decision that House Bill 68 did not “retrospectively apply” to the lawsuit. That judge, Jim Noel, also sided with the Bernalillo County District Attorney’s Office in his decision, declaring the PTS’ GPS records “public record.”

However, since House Bill 68 is now part of state law, Judge Noel’s August 1 decision more or less applies solely to Torrez’s 2021 lawsuit– which, again, was filed before HB68 was created. On August 11, the Second Judicial District Court filed an appeal to the decision made in the District Attorney’s lawsuit.

Six days later, the Second Judicial District Court withdrew its appeal. In a news release, the Second Judicial District Court’s General Counsel said it was withdrawing its appeal due to the Supreme Court’s order on GPS records.

“There are now appropriate mechanisms for law enforcement to secure sensitive information without jeopardizing the rights and safety of individuals accused of crimes,” said Allison Orona in a news release. Orona is the general counsel for the Second Judicial District Court. “SJDC Court Administration believes that any remaining issues of the August 1, 2022 Order regarding disclosure of GPS data moving forward have been resolved.”

The Second Judicial District Court also said it would provide the Bernalillo County DA’s Office with the requested GPS records, pursuant to the August 1 order from Judge Jim Noel.