                                                         RENDERED : OCTOBER 19, 2006
                                                                    TO BE PUBLISHED



                     "Supreme (90urf of "PR

                                   NO . 2005-SC-000832-MR       [DATF=

 DAMIEN A. SUBLETT                                                            APPELLANT




                    APPEAL FROM JEFFERSON CIRCUIT COURT
V.              HONORABLE LISABETH HUGHES ABRAMSON, JUDGE
           INDICTMENT NOS. 03-C R-002331, 03-CR-003102, AND 05-C R-000556




COMMONWEALTH OF KENTUCKY                                                       APPELLEE



                           MEMORAND UM OPINION OF THE COURT

                                         AFFIRMING

                 Damien A. Sublett pleaded guilty to twenty-two counts of first-degree

robbery, expressly reserving his right to appeal from the trial court's denial of his

motions to suppress, and received a twenty-five year prison sentence in a plea

agreement with the Commonwealth . He appeals to this court as a matter of right'

contending that the trial court erred by (1) denying his motion to suppress evidence

obtained in two searches conducted at the respective homes of his mother and sister


     Ky. Const. § 110 (2) (b) .
 and (2) denying his motion to suppress statements he made to police interrogators

 following his arrest. Finding no error, we affirm.

                                           FACTS

               When Sublett was paroled in May 2003, he signed a written agreement

 containing the conditions of supervision for his release . They included the following :

                      V.     A.     I agree that I may be subject to search
                      and seizure if my officer has reason to believe that I
                      may have illegal drugs, alcohol, volatile substances,
                      or other contraband on my person or property .



                      VI .   A.       I shall permit my Probation and Parole
                      Officer to visit my residence and place of employment
                      at any time .



                              J.     I shall not violate any law or ordinance
                      of this state or any other state or of the United States.

              Within weeks after Sublett's release on parole, Louisville Metro Police

identified him as the primary suspect in a series of robberies . Detective Larry Duncan

knew Sublett from prior arrests, and he was aware of Sublett's parolee status . Duncan

believed he recognized Sublett on videotapes of some of the robberies . And he relayed

his suspicions to robbery detectives. He also prepared photo arrays to show the

victims, obtaining positive identifications of Sublett from some victims . On August 27,

2003, Duncan prepared an affidavit and request for a warrant to search the home of

Sublett's mother, Gail, where Sublett was supposed to be living.

              That same day, Sublett's parole officer, Officer Johnson, went to

Ms . Sublett's home for the stated purpose of a "home visit." Officer Johnson was aware
 at the time that Sublett was the primary robbery suspect . Ms. Sublett allowed Officer

 Johnson to enter the home and stated that Sublett was not present but had been

 staying with his sister. She stated that he would be back the next day if Officer Johnson

 would return then .

               On August 28, 2003, Detective Duncan received word in the morning that

 other Louisville Metro Police officers were en route to Ms. Sublett's home to arrest

 Sublett before Detective Duncan was able to obtain the search warrant he was seeking .

 Meanwhile, Officer Johnson returned to Ms. Sublett's home, accompanied by Probation

 and Parole Officer Hamilton, intending to arrest Sublett for the robberies . Ms. Sublett

 informed the parole officers that Sublett was still at his sister's house. She phoned

Sublett and told him to return to her home because Officer Johnson was conducting a

home visit and needed him to take a drug test. According to the trial court's findings,

Ms. Sublett consented to the parole officers entering her home . When Sublett arrived,

he was arrested by Officer Hamilton .

              Immediately following the arrest, Louisville Metro Police officers, who had

been waiting outside Ms . Sublett's residence, entered and searched the premises. But

they seized no evidence at that time . Following the arrest and search, Ms. Sublett

provided police with contact information for Sublett's sister, Detra Payne .

              The police immediately contacted Payne, who consented to a search of

her home. In searching Payne's home, the police found Sublett's black backpack

containing a large amount of money in   a mesh laundry bag, a pair of Sublett's jeans
with a wad of money in the pocket, and other items of his clothing . Police also found

several money wrappers outside Payne's residence . Payne cooperated with the police,
 gave a recorded statement indicating that she had voluntarily consented to the search,

 and expressed surprise concerning some items found . She told officers that her brother

 would sometimes spend a night or two at her house, leave for awhile, and then return to

 stay later. He had spent several days with her before his arrest.

                Following his arrest, police transported Sublett to their Robbery Unit Office

 for questioning . While being held at that location, Sublett wrote the word "Refused" and

 his initials on a form for waiver of Miranda2 rights, which was also signed by Detective

 Mark Hickman . Later that same day, Sublett signed a waiver of rights form. Sublett

contends that he invoked his rights to remain silent and to speak to an attorney and only

signed a waiver form when police demonstrated an unwillingness to honor these rights .

At the suppression hearing, police officers testified that Sublett never invoked these

rights, that these rights were fully explained, that Sublett never told any officer of a prior

refusal to talk with any other officer, and that he seemed knowledgeable of the process .

               Sublett admitted to fifteen of twenty robberies in a statement to Detective

Duncan, but he also stated that multiple personalities named Rick and Carlos had

inhabited his body and had committed the robberies . In a later interview with Detective

Wayne Colebank that same day, Sublett stated that Rick and Carlos were present and

responding to questions and eventually invoked his right to remain silent and to counsel,

at which time the interview ceased. According to Detective Colebank, Sublett invoked

his rights when confronted with the fact that the perpetrator had cut one victim with a

knife in a struggle during a robbery .

              Grand juries indicted Sublett for twenty-two counts of robbery, one count

of attempted murder, and one count of fourth-degree assault. Following resolution of

   Miranda v. Arizona , 384 U.S . 436 (1966) .
 the question of Sublett's competency, he filed motions to suppress evidence obtained in

 the searches of his mother's and his sister's homes and his statements to police at the

 Robbery Unit Office . The trial court denied the motions . Sublett filed a pro se motion

 for reconsideration of the suppression motions, but the reconsideration was not ruled

 upon by the trial court before Sublett reached a plea agreement with the

Commonwealth and entered a conditional guilty plea . This appeal followed .


                                           ANALYSIS


I.       Sublett's Arrest was Legal.

         A.      Mother Consented to Parole Officers' Entry.

                 According to Sublett, this case presents a novel question regarding

whether parole officers have authority to enter a home without a warrant to arrest a

parolee under KRS 439.430 (1). This statute allows a parole officer to arrest a parolee

upon a reasonable suspicion of violation of the terms of release . Sublett concedes that

"[t]here is no doubt that the statute authorizes an arrest. But it does not specify whether

the officer relying on Subsection (1) can enter a house to effect the arrest ." Sublett

contends that absent exigent circumstances, a warrantless entry into one's home to

make an arrest is unconstitutional under Pavton v. New York. The Commonwealth

correctly responds that this precise issue was not presented to the trial court and, thus,

is not preserved for appeal.




     Kentucky Rules of Criminal Procedure (RCr) 8.09 .

     445 U.S. 573 (1980) .
                 Regardless of preservation, we need not reach this issue to resolve this

case . Pa on expressly forbids "a warrantless and non-consensual entry into a

suspect's home in order to make a routine felony arrest."5 But this case does not

involve a non-consensual entry because Ms. Sublett consented to it. And as owner and

occupant of the home, she had authority to admit the parole officers. So regardless of

whether KRS 439.430 (1) grants parole officers the authority to enter a home without a

warrant to make an arrest, the authority to enter this home was granted by the consent

of Ms. Sublett. Under RCr 9.78, the trial court's factual finding that Ms. Sublett

consented to the entry of her home is conclusive since we find it to be supported by

substantial evidence . The general prohibition against warrantless entry into the home

may be overcome by any valid exception to the warrant requirement, such as consent.'

                 Differing facts of this case dictate a different outcome from our holding in

Coleman v. Commonwealth ,$ in which the lack of consent to the entry and the lack of

reasonable suspicion of a parole violation compelled a finding that the entry into the

home was unlawful ; and the evidence uncovered at the home should have been

suppressed .

       B.        Parole Officers Had Statutory Authority to Arrest Sublett.

                 Sublett argues that parole officers are not "peace officers," that they have

only very limited arrest powers under KRS 439.430, and that his arrest was unlawful

because of the parole officers' failure to conform to KRS 439 .430. We do not find it

   Id. at 576 (emphasis added) .

   Colbert v. Commonwealth , 43 S.W.3d 777, 781 (Ky. 2001) .

   Id. at 779.

   100 S.W.3d 745 (Ky. 2002).
 necessary to address whether parole officers are "peace officers" in the general sense

 of the word . KRS 439.430 empowers parole officers to arrest in certain situations . That

 statute provides, in pertinent part:

               (1)     Any parole officer having reason to believe that a
                       parolee has violated the terms of his release may
                       arrest the parolee without a warrant or may deputize
                       any other peace officer to do so by giving him a
                       written statement setting forth that the parolee, in the
                       judgment of the parole officer, has violated the
                       conditions of his release . The written statement
                       delivered with the parolee by the arresting officer to
                      the official in charge of the station house, jail,
                      workhouse, or other place of detention, shall be
                      sufficient warrant for the detention of the parolee.
                      The parole officer who arrests or causes the arrest of
                      the prisoner shall notify the commissioner or his
                      designee at once of the arrest and detention of the
                      parolee, and shall submit in writing a report showing
                      in what manner there has been a violation of the
                      conditions of release . Thereupon, if the commis-
                      sioner or his designee believes the parolee should be
                      returned to prison, the commissioner or his designee
                      at once shall submit his recommendation to the
                      board, and, if the board approves, it shall issue a
                      warrant upon which the releasee shall be returned to
                      prison ; otherwise the prisoner shall be released upon
                      the order of the commissioner or his designee .

               (2)    A written statement, approved by the commissioner or
                      his designee, by a parole officer, and filed with the
                      board setting forth that the parolee in the judgment of
                      the officer has violated the condition of his release,
                      shall be sufficient cause for the board, in its
                      discretion, to issue a warrant for the arrest of the
                      parolee, or for his return to prison .

              Sublett argues that in order to effectuate a valid arrest, a parole officer

must either deliver a written statement to the detention facility and submit a written

report to the Commissioner of the Justice Cabinet under Subsection 1, or must submit a

written report to the Parole Board seeking a warrant under Subsection 2. He posits
 "[t]here is no evidence that Officer Johnson complied with either option[ ]" since no

 application was made to the Parole Board for a warrant, and there is no "evidence that

 Officer Johnson deputized the Louisville Metro Police Officers who accompanied her on

               ."
 August 28th

                    We find no requirement for Officer Johnson to deputize the accompanying

 police officers . Officer Johnson had reason to believe that Sublett had violated his

 parole by committing robberies and so she was authorized to arrest him herself.

 Subsection 1 presents two options to parole officers having reasonable suspicion of

parole violation : arrest the parolee or deputize a peace officer to do so. Since Officer

Johnson arrested Sublett with Officer Hamilton's assistance, there was no need to

deputize another to arrest him.

                    As for the Subsection 1 requirement that a written statement from the

parole officer be sent to the detention facility along with the parolee, this requirement

only applies to situations in which other officers are deputized to make the arrest . This

subsection states that the parole officer may arrest on reasonable suspicion of parole

violation or "may deputize any other peace officer to do so by giving him a written

statement setting forth that the parolee . . . has violated the conditions of his release."

The next sentence then states that "[t]he written statement delivered with the parolee by

the arresting officer' to the person in charge of the detention facility "shall be sufficient

warrant for the detention of the parolee." Construing the first two sentences of

Subsection 1 together, the parolee may be arrested without a warrant by the parole

officer or may be arrested by another peace officer with a parole officer's written

statement (which serves as a sufficient warrant) setting forth the parole violation. But
 we do not read this subsection as requiring a written statement of parole violation to be

 delivered to the detention facility with the parolee if the parolee is arrested by a parole

 officer .

                As for the requirement that the parole officer who arrests or authorizes the

arrest must submit a written report concerning the parole violation to the commissioner,

this requirement obviously relates to parole revocation hearings, as evidenced by the

next sentence stating that upon the arrest of the parolee, the commissioner submits a

recommendation to the board and the board decides whether the parolee be returned to

prison or released . As the Commonwealth points out, Sublett's parole was not revoked;

rather, he was charged with the new robbery offenses, constituting a parole violation.

               In any case, a failure strictly to comply with these record-keeping

requirements will not invalidate an otherwise proper arrest and conviction .

Longstanding Kentucky case law holds that record-keeping requirements exist for the

benefit of arresting officers rather than parolees .9

               Furthermore, because the parole officers had authority to and did arrest

Sublett themselves under Subsection 1, Subsection 2 is not applicable . Subsection 2

allows a parole officer to file a written statement with the board (after having such

statement approved by the Commissioner) so that the board can decide whether to



   Evans v. Thomas , 372 S.W.2d 798, 800 (Ky. 1963) (upholding trial court's refusal to grant
   writ of mandamus to compel release from prison where parolee was arrested by police upon
   telephone notice of parole violation by parole officer and without written statement setting
   forth violation, as "[t]he written statement required by [KRS 439.430 (1)] is for the protection
   of the arresting officer. . . . The method used is condemned, but we find no reason that this
   technical defect should have the effect of vacating the original judgment of conviction ." The
   court noted that the parolee was returned to prison under the parole officer's parole violation
   warrant two days after his arrest ; that he was in prison on the underlying robbery charge ;
   and that he received a parole revocation hearing, but he was held for two days without
   proper authority.).
 issue a warrant for the parolee's arrest or return to prison . As the Commonwealth

 points out, Sublett was not sent back to prison by the board for parole revocation .

                Since we have determined that the arrest itself was legal, there is no need

 to reach the Commonwealth's alternative arguments concerning inevitable discovery

 and whether the removal from the home and the giving of Miranda warnings purged any

 later statements of the taint of an illegal arrest.


 11.    Search of Sublett's Backpack and Jeans was Reasonable.

        Sublett argues that the police illegally searched his backpack and jeans, which

were found in Payne's home . The trial court found that Payne had voluntarily

consented to the search of her home and that her consent "was sufficient to authorize

the seizure" of items belonging to Sublett . The trial court stated, however, that

"[Payne's] consent would not extend to the search of Defendant's black backpack or the

pockets of his jeans ." Nonetheless, the trial court found that the search of these items

was justified by the specific conditions of Sublett's release on parole, which indicated

that Sublett agreed that he may be subject to search or seizure upon his officer's

reasonable suspicion that he had contraband on his person or property . Sublett argues

that the trial court incorrectly determined that the search was justified by this condition

of release on parole, especially in light of Probation and Parole department regulations

on searches.

       The Commonwealth contends that this issue was not raised to the trial court . On

this issue, Sublett generally contended that his sister did not voluntarily consent to the

search of her home and argued that the search of her home in general was illegal in his

motion to suppress. But the trial court, acting on its own initiative, brought up the issue



                                              - 1 0-
 of whether Payne's authority to consent to search of items belonging to her brother

 extended to the specific searches of the jeans pockets and the backpack. The trial

 court ruled that Payne did not have such authority. And neither party has addressed the

 propriety of this distinction in arguments presented to this Court. So we will assume for

 our analysis that the trial court ruled properly on this issue. We will consider whether

 the conditions of release on parole, as opposed to consent in general, justify the search

of the backpack and jeans . Sublett's jeans were found beside a couch in Payne's living

room and his backpack in a mesh laundry bag in Payne's kitchen area-both in

common areas of the house and not in areas where Sublett might reasonably have had

heightened expectations of privacy.

       To some extent, the issue of the search of these particular items was raised in

the trial court in Sublett's pro se motion for reconsideration, in which he generally

argued that the search of his sister's home was not justified by his conditions of parole .

He argued that the parole conditions were limited to the actions of his parole officers,

and they would not justify a search by police . Sublett did not specifically contest the

search of his jeans pockets and backpack as opposed to other items found in his

sister's home, however, and the trial court did not rule upon his motion before he

entered his guilty plea.

       We find that the trial court properly concluded that the search was justified by the

plain language of the conditions of Sublett's release on parole . The applicable

language states, "I agree that I may be subject to search and seizure if my officer has

reason to believe that I may have . . . contraband on my person or property ." Sublett

argues that this condition only pertains to a search by a parole officer . We disagree .
 This condition does not state who must perform the search and seizure but only states

 that the parolee agrees to a search and seizure if the underlying condition is met. The

 underlying condition here was the parole officer's reasonable belief that contraband was

 contained in the parolee's property . While Officer Johnson apparently did not conduct

 this search herself, she had reason to believe that contraband might be found among

 Sublett's property at the time Payne's house was searched following Sublett's arrest on

 multiple robberies . She implicitly authorized the search because she helped deliver

 Payne to her house to facilitate the search . In the words of the trial court,

        Whether searched by Officer Johnson or an LMPD officer, whether
        searched on the Payne premises or at the police station, the backpack
        and jeans were subject to warrantless search and seizure pursuant to
        Defendant's conditions of parole supervision, given the facts known to all
        of these officers prior to and following Defendant's arrest .

 In effect, Sublett consented to the search by agreeing as a condition of release on

parole that he was subject to search upon a parole officer's reasonable suspicion of

parole violation . Thus, we need not resolve whether departmental policy would have

called for a warrant in the absence of consent. Furthermore, such a policy would not

create a right for Sublett but, rather, provides direction for parole officers .

        We conclude that the trial court did not err in denying the motion to suppress

evidence found in the search of Payne's house, particularly the backpack and jeans

pocket, which both contained large amounts of currency.


111 .   Statements Made at the Robbery Unit Were Voluntary.

        Sublett argues that the trial court erred in finding that the statements he made to

police at the Robbery Unit Office in the hours following his arrest were voluntarily made .

He contends that the waiver form which contains the word "Refused" and his initials and



                                             - 1 2-
 Detective Hickman's signature established that he invoked his right to remain silent and

 his right to counsel . He admits to signing another waiver form but states that he did so

only after deciding that police would not honor the Miranda rights he claims to have

invoked . He faults the trial court for accepting Detective Hickman's testimony that the

word "Refused" should be interpreted to mean only that Sublett refused to sign a written

waiver. Sublett contends that "when a reasonable person sees the word `Refused' in

place of a signature, the only conclusion to be drawn is that the suspect refused to

waive his rights ." Sublett argues that this was a clear invocation of Miranda rights,

making inadmissible any incriminating statements that followed .

       The trial court accepted the testimony of several police officers that Sublett did

not invoke his rights before making statements . The trial court rejected Sublett's

testimony to the contrary . The trial court explained in detail the reasoning that led her to

find the officer's version of events more credible, as follows :

                Accepting Defendant's version of the four and one-half hours that
       transpired between his 9:30 arrest at his mother's home and his signature
       on the Waiver of Rights form would require the conclusion that every
       single police officer who came in contact with Defendant prior to 2:00 p.m .
       on August 28 . . . ignored Defendant's repeated requests to remain silent
       and to have an attorney . In addition, if Defendant's version were accurate,
       all of the aforementioned officers who testified lied to the Court while
       under oath . Moreover, Defendant has admitted to this Court that he lied to
       Detective Duncan about the presence of his multiple personalities or alter-
      egos, Rick and Carlos, allegedly because he was being forced to talk and
      was "acting silly." Accepting Defendant's version of the events also entails
      concluding that several officers repeatedly denied Defendant's requests
      for an attorney and invocation of his right to remain silent but then,
      inexplicably, Detective Colebank honored that right and ceased all
      questioning about two robberies for which no confession had been made.
      Although Defendant appears to have been at the Robbery Unit Office for
      approximately three to four hours before the Rights Waiver form was
      signed . Defendant's description of events during those hours simply is not
      credible . Indeed, given the totality of the circumstances, the Common-
      wealth has met its burden of establishing by a preponderance of the



                                            - 1 3-
         evidence that Defendant provided a voluntary statement. See Mills v.
         Commonwealth, 996 S.W.2d 473 (Ky. 1999) . (footnote omitted) .

 We find that the trial court properly exercised its discretion to judge the credibility of

 witnesses and to draw inferences from their testimony under Commonwealth v.

 Whitmore.' ° Clearly, the trial court's findings of fact are supported by substantial

 evidence and, thus, conclusive under RCr 9.78 . We find no error in the determination

 that Sublett validly waived his Miranda rights and that his statements made at the

 Robbery Unit Office were voluntarily made .


                                        CONCLUSION

                For the foregoing reasons, the judgment of the Jefferson Circuit Court is

affirmed .

               All concur.




10 92 S.W.3d 76, 79 (Ky . 2002) .


                                            -14-
COUNSEL FOR APPELLANT :

J . David Niehaus
Deputy Appellate Defender
Office of the Jefferson District Public Defender
200 Advocacy Plaza
719 W . Jefferson Street
Louisville, Kentucky 40202


COUNSEL FOR APPELLEE :

Gregory D. Stumbo
Attorney General of Kentucky

Susan Roncarti Lenz
Assistant Attorney General
Office of Criminal Appeals
Office of the Attorney General
1024 Capital Center Drive
Frankfort, Kentucky 40601
