ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

KAREN R. BAKER, JUDGE

DIVISION IV

DAMIEN D. HODGES

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR00-01078

MAY 23, 2001

APPEAL FROM THE ST. FRANCIS COUNTY CIRCUIT COURT

[NO. CR97-43]

HONORABLE HARVEY LEE YATES,

CIRCUIT JUDGE

AFFIRMED

The appellant, Damien Hodges, pled guilty to first-degree battery in St. Francis Circuit Court. The imposition of his sentence was suspended for five years, and he was placed on supervised probation for two years. That same day, in a separate case, appellant pled guilty to attempted delivery of a controlled substance. In the second case, appellant's sentence was suspended for five years, and he was placed on supervised probation for two years. The trial court ordered that the two sentences be served concurrently. Subsequently, on May 22, 2000, a revocation hearing was held in St. Francis County. Appellant's motion to suppress evidence due to an unreasonable search and seizure was denied. Appellant's suspended sentences were revoked, and he was sentenced to ten years' imprisonment in the Arkansas Department of Correction. Appellant appeals the revocation of his probation and argues that the trial court erred in failing to suppress the evidence from an unreasonablesearch in the revocation proceeding. We disagree and affirm.

On October 25, 1999, Officer Jerry Donaldson observed appellant stopped in the middle of the street talking to a subject on the passenger's side of the car. Officer Donaldson initiated his blue lights and approached the car. He witnessed appellant place a small white rock-like substance in his mouth. Officer Donaldson opened the car door and tried to prevent appellant from swallowing the substance, but was unsuccessful. When Officer Donaldson opened the car door, he immediately smelled burning marijuana. Once appellant swallowed the white substance, he was removed from the car and placed in the backseat of the officer's patrol car. Officer Donaldson then located a burning marijuana cigarette in a portable CD player and a six-inch butcher knife under the driver's seat.

A second incident occurred on April 24, 2000. Officer Donaldson initiated a stop of the vehicle appellant was driving after recognizing the passenger, known by Officer Donaldson to have outstanding warrants. When Officer Donaldson approached the vehicle, an altercation arose between appellant and the officer. Officer Donaldson arrested appellant based on the altercation. On May 17, 2000, appellant filed a motion to suppress the green leafy substance found in the automobile during the October 25, 1999, search. The motion was denied. On May 22, 2000, a revocation hearing was held, and the court held that appellant had violated the terms of his suspended sentence.

In a hearing on a petition to revoke probation the burden is upon the State to prove the violation of a condition of the suspended sentence, and, on appellate review, the trial

court's findings are upheld unless they are clearly against a preponderance of the evidence. Carson v. State, 21 Ark. App. 249, 731 S.W.2d 237 (1987).

Appellant, while recognizing the general principle that the exclusionary rule does not apply to probation revocation proceedings, makes several arguments that this case falls under one of three exceptions. Specifically, appellant first argues this case seems to suggest harassment by Officer Donaldson. Appellant claims Officer Donaldson harassed him on October 25, 1999, by detaining him without cause. Contrary to appellant's argument, appellant was violating the law by stopping in the center of the roadway. Officer Donaldson testified that when he approached appellant, he saw appellant attempt to swallow a white rock-like substance. Almost simultaneously, Officer Donaldson recognized the smell of burning marijuana coming from appellant's vehicle. It is clear that, under these facts, Officer Donaldson had probable cause to detain appellant.

On April 24, 2000, Officer Donaldson approached appellant upon recognizing the passenger, who had outstanding warrants, in the vehicle. As a result, Officer Donaldson attempted to remove the passenger from the vehicle, and an altercation ensued between appellant and the officer. Once again, Officer Donaldson had probable cause to detain appellant. As a result, the record contains no evidence suggesting harassment on the part of Officer Donaldson.

Second, appellant argues that Officer Donaldson's primary purpose was to seek revocation of appellant's probation. Appellant relies on Dabney v. State, 278 Ark. 375, 646 S.W.2d 4 (1983), where our supreme court suggested that the exclusionary rule might beapplicable if it appeared that the officer's primary purpose was to seek revocation of a defendant's probation. In support of this argument, appellant noted the level of familiarity between Officer Donaldson and appellant. Specifically, the officer was familiar with the car appellant was driving. Officer Donaldson testified that he was aware that the trunk of the car could not be unlocked with a key and that the car did not necessarily need a key in the ignition for it to run. Appellant also claimed Officer Donaldson chose to engage appellant whenever the opportunity arose. However, testimony revealed that during both incidents where appellant was detained by Officer Donaldson, probable cause was present. As a result, the record contains no evidence suggesting that Officer Donaldson's primary purpose in detaining appellant was to seek revocation of his probation. Third, appellant, relying on Harris v. State, 270 Ark. 634, 606 S.W.2d 93 (1980), also briefly noted that Officer Donaldson was not making a good faith effort to comply with the law. However, appellant supports this argument with only unsubstantiated accusations against Officer Donaldson. We conclude each of appellant's arguments are without merit.

It has long been the law in this state that the exclusionary rule does not apply in revocation hearings. Robinson v. State, 29 Ark. App. 17, 775 S.W.2d 916 (1989). This court has suggested that there may be exceptions to the general rule that the exclusionary rule is inapplicable in probation revocation proceedings. McGhee v. State, 25 Ark. App. 132, 752 S.W.2d 303 (1988). However, appellant has failed to demonstrate that the circumstances of this case come within any possible exception.

The trial court's findings in this case are not clearly against a preponderance of theevidence. Further, we find no merit in the appellant's contention that the court erred in denying his motion to suppress.

Affirmed.

Jennings and Robbins, JJ., agree.