In re D.G.

Filed 1/14/10 In re D.G. CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

After denial of his motion to suppress evidence, defendant admitted that he was an accessory after the fact to possession of an assault weapon (Pen. Code, 32), as charged in a juvenile petition filed pursuant to Welfare and Institutions Code section 602.[1] In this appeal he challenges the juvenile courts denial of the motion to suppress. We conclude that the evidence and statements seized from defendant were the product of an unlawful arrest, and reverse the judgment.

STATEMENT OF FACTS[2]

On the afternoon of March 14, 2009, Union City Police Officers Yousuf Shansab and Joshua Clubb were working as a special enforcement robbery suppression unit in the Marketplace shopping center in Union City, where several robberies had been committed in the past few months. The officers were in an unmarked vehicle, but were wearing navy blue Union City Police Department raid jackets, with police identification patches and badges on the front, back and shoulders.

From their vehicle the officers observed defendant and his juvenile companion D.M. lingering in front of the Safeway, walking one way or another and nervously looking around for between one and four minutes. The two boys looked at the officers, then walked over to a water fountain in front of a Starbucks and a Round Table Pizza.[3] The officers were suspicious of the behavior of defendant and D.M., and continued to watch them. Defendant sat down on a bench around the water fountain, while D.M. stood near him. They spoke intermittently, but did not engage in any further suspicious or illegal activities. After seven or eight minutes the officers wanted to see what they were up to.

The two officers approached defendant and D.M. to talk to them and request consent to conduct a search. Defendant stayed seated where he was, and said nothing. D.M. immediately yelled out, Im not on probation, and walked away. The officers observed that D.M. walked as if he was definitely carrying something on his left waistband: his right hand was swinging loose, but his left hand was pinned against his side to hold something from falling; his gait was awkward, and he favored one leg. Officer Shansab testified that he had previously seen people with possession of handguns walk in the same manner. He also observed a bulge under D.M.s sweater. The officer called D.M. back to him, and directed him to keep his hands in the open and pull up his sweater. D.M. resisted momentarily, but finally pulled up his sweater, whereupon Officer Shansab definitely saw the outlining of a stock of a gun. He then asked D.M. several times to pull up his shirt and put his hands behind his back. When D.M. started arguing, the officer grabbed his hands and discovered that the object in his waistband was an older-model Mossberg shotgun with the barrel and stock sawed off. D.M. was immediately arrested.

As Officer Shansab followed D.M., Officer Clubb asked defendant if he was on probation. Defendant replied that he was on probation for a 211 robbery. Officer Clubb acknowledged that he had no grounds based on defendants behavior to effectuate a detention, but concluded from defendants admitted status as a probationer that he had the right to detain him and investigate the matter further.

Once D.M. was apprehended, the officers noticed there were several bystanders at the scene, approximately 20 in number, who were fairly hostile. They were cursing and yelling police brutality. The officers decided that due to the antagonism expressed by the crowd of onlookers and the danger with a firearm involved, they would transport both suspects to the Union City police station. Defendant was handcuffed and taken from the scene involuntarily, but the officers did not consider him under arrest because they didnt find a weapon on him at the time.

At the station, Officer Clubb learned from defendant that he had a search clause attached to his probation. The officer also seized defendants cell phone and examined photos on the phone. Defendant subsequently made statements to Officer Clubb in which he admitted the shotgun taken from D.M. was his and that he had been storing it, in violation of his probation, at his residence for approximately two weeks.

The defense offered testimony from defendants mother, A.G., who appeared at the Union City police station after she received a call that her son had been arrested and was in custody. Officer Clubb advised her that defendant had been detained because he was on probation. The officer later told her that he found photos of defendant holding the firearm, and defendant admitted the shotgun belonged to him. Defendant testified that after the shotgun was found in D.M.s possession he was arrested. Officer Clubb then put the handcuffs on defendant, and he and D.M. were both placed on the ground, on their stomachs. When backup officers arrived, defendant and D.M. were put in the patrol vehicle and transported to the police station. An officer looked at defendants cell phone about an hour later, then told defendant he was free to go. Defendant thereafter made statements to the officer.

DISCUSSION

Defendant argues that he was unlawfully detained and arrested without probable cause. He also maintains the seizure was not justified by his probationary status, as the officers were not aware that he was subject to a search clause before he was detained. He thus claims that the statements he subsequently made at the police station were the product of an unlawful arrest and must be suppressed. The Attorney General responds that the seizure of defendant was based on adequate cause, and even if an unlawful detention or arrest occurred, the subsequent discovery of the probation search condition attenuated any illegality that may have attached to his seizure, so the statements taken from defendant need not be suppressed.

I. The Seizure of Defendant.

To determine whether defendant was lawfully seized when the statements were taken from him we must evaluate the nature and timing of defendants contacts with the police. [A] person has been seized within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. [Citation.] (Wilson v. Superior Court (1983) 34 Cal.3d 777, 790, fn. omitted; see also People v. Daugherty (1996) 50 Cal.App.4th 275, 283.) Police contacts with individuals may be placed into three broad categories ranging from the least to the most intrusive: consensual encounters that result in no restraint of liberty whatsoever; detentions, which are seizures of an individual that are strictly limited in duration, scope, and purpose; and formal arrests or comparable restraints on an individuals liberty. (In re Manuel G. (1997) 16 Cal.4th 805, 821.)

No detention of defendant and D.M. occurred when the officers approached them by the water fountain of the shopping center to ask questions. The established rule is  that a detention does not occur when a police officer merely approaches an individual on the street and asks a few questions. [Citation.] As long as a reasonable person would feel free to disregard the police and go about his or her business, the encounter is consensual and no reasonable suspicion is required on the part of the officer. Only when the officer, by means of physical force or show of authority, in some manner restrains the individuals liberty, does a seizure occur. [Citations.] [Citation.] The reasonable person test is objective and presupposes an innocent person. (People v. Colt (2004) 118 Cal.App.4th 1404, 1411, italics omitted.) Contacting a person in a public place and asking questions are not actions in themselves constituting coercive police conduct that would lead a reasonable person to believe that he or she was not free to leave. (In re Manuel G., supra, 16 Cal.4th 805, 822.) An officer has every right to talk to anyone he encounters while regularly performing his duties . . . . Until the officer asserts some restraint on the contacts freedom to move, no detention occurs. (People v. Castaneda (1995) 35 Cal.App.4th 1222, 1227; see also People v. Dickey (1994) 21 Cal.App.4th 952, 954955.) As the United States Supreme Court explained in Florida v. Royer (1983) 460 U.S. 491 [497]: [L]aw enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions. . . . [Citation.] (People v. Hughes (2002) 27 Cal.4th 287, 328; see also People v. Souza (1994) 9 Cal.4th 224, 234; People v. Daugherty, supra, 50 Cal.App.4th 275, 283.) The interaction at the water fountain was a consensual encounter that did not result in an unlawful detention, and required no cause. (People v. Hughes, supra, at p. 328.) Defendants statement to the officers that he was on probation for robbery was therefore lawfully obtained.

Thereafter, the encounter escalated quickly and appreciably. The officers detained and pat-searched D.M., which resulted in discovery of the firearm in his possession. Defendant continued to remain seated, and cooperated with the officers. He made no further statements nor engaged in any suspicious behavior before he was handcuffed, placed on his stomach, and involuntarily transported to the police station. Defendant was of course seized at that point. The crucial inquiry before us is whether the seizure was a detention or an arrest.

 [T]he principal difference between a Terry detention and an arrest is the distinction between suspicion that [a person] may be connected with criminal activity (Terry v. Ohio [1968] 392 U.S. [1,] 10 . . .), and probable cause to believe that the suspect has committed a crime. . . . [Citation.] . . . [Citation.] (In re Justin B. (1999) 69 Cal.App.4th 879, 886887.) An arrest is defined in the Penal Code as taking a person into custody, in a case and in the manner authorized by law. ( 834.) It is made by an actual restraint of the person, or by submission to the custody of an officer. ( 835.) A detention, on the other hand, has been said to occur if the suspect is not free to leave at will if he is kept in the officers presence by physical restraint, threat of force, or assertion of authority. [Citation.] (Evans v. City of Bakersfield (1994) 22 Cal.App.4th 321, 330.) At some point, a detention can become an arrest if not by actual express designation, then by effect. (People v. Gorrostieta (1993) 19 Cal.App.4th 71, 83.) A police stop that began as an investigative detention may become so overly intrusive that it can no longer be characterized as a minimal intrusion designed to confirm quickly or dispel the suspicions which justified the initial stop. [Citation.] When the detention exceeds the boundaries of a permissible investigative stop, the detention becomes a de facto arrest requiring probable cause. . . . [Citations.] (In re Antonio B. (2008) 166 Cal.App.4th 435, 440441.)  [T]here is no hard and fast line to distinguish permissible investigative detentions from impermissible de facto arrests. Instead, the issue is decided on the facts of each case, with focus on whether the police diligently pursued a means of investigation reasonably designed to dispel or confirm their suspicions quickly, using the least intrusive means reasonably available under the circumstances. [Citations.] Important to this assessment, however, are the duration, scope and purpose of the stop. (People v. Celis (2004) 33 Cal.4th 667, 674675.)

In the present case the seizure was exceptionally intrusive in both scope and duration. Defendant was handcuffed and placed on his stomach, then confined in the patrol vehicle and transported to the police station, where, the evidence indicates, he was kept for approximately an hour before he was questioned. We recognize that briefly handcuffing a suspect during an investigation of suspicious conduct does not necessarily transform a detention into an arrest. (See People v. Celis, supra, 33 Cal.4th 667, 675.) But here, the use of handcuffs on defendant was not warranted by cause to believe that he was engaged in criminal behavior. He neither attempted to flee nor by his conduct presented any danger to the officers. The intrusion also extended beyond both the scene of the detention and the time necessary to briefly investigate the matter to effectuate the purpose of the detention. While we certainly do not fault the officers for seeking to avoid an unsafe situation for all concerned, they did not merely temporarily remove defendant from the area. Instead, defendant was restrained, involuntarily transported from the scene to the police station, held for an hour, and questioned, which is equivalent to an arrest that may constitutionally be made only on probable cause. (Kaupp v. Texas (2003) 538 U.S. 626, 630; People v. Celis, supra, at p. 674.) We conclude that the detention became a de facto arrest before defendants phone was seized or he made any statements to the officers. (In re Antonio B., supra, 166 Cal.App.4th 435, 441442; People v. Gorrostieta, supra, 19 Cal.App.4th 71, 83.)

II. The Cause to Arrest Defendant.

The legality of the arrest thus depended upon the existence of probable cause at the time defendant was taken into custody and arrested. (Kaupp v. Texas, supra, 538 U.S. 626, 630; People v. Celis, supra, 33 Cal.4th 667, 674; In re Antonio B., supra, 166 Cal.App.4th 435, 440; People v. Freund (1975) 48 Cal.App.3d 49, 54.)  Cause to arrest exists when the facts known to the arresting officer would lead a person of ordinary care and prudence to entertain an honest and strong suspicion that the person arrested is guilty of a crime. [Citation.] (Ruiz v. Superior Court (1994) 26 Cal.App.4th 935, 940; see also People v. Turner (1994) 8 Cal.4th 137, 185; People v. Dibb (1995) 37 Cal.App.4th 832, 837; People v. Limon (1993) 17 Cal.App.4th 524, 537; People v. Boissard (1992) 5 Cal.App.4th 972, 977.)  . . . [P]robable cause is a fluid concept turning on the assessment of probabilities in particular factual contexts . . . . [Citation.] It is incapable of precise definition. . . . [Citation.] (People v. Thompson (2006) 38 Cal.4th 811, 818.) It is less than proof beyond a reasonable doubt [citation]; less than a preponderance of the evidence [citation]; and less than a prima facie showing [citation]. (People v. Tuadles (1992) 7 Cal.App.4th 1777, 1783; see also People v. Garcia (2003) 111 Cal.App.4th 715, 721.)   The substance of all the definitions of probable cause is a reasonable ground for belief of guilt,  and that belief must be particularized with respect to the person to be . . . seized. [Citation.] (People v. Celis, supra, at p. 673.) Probable cause is measured by an objective standard based on the information known to the arresting officer, rather than a subjective standard that would take into account the arresting officers actual motivations or beliefs. [Citation.] The arresting officers actual motivations or beliefs should play no role in the courts determination of probable cause. (Gillan v. City of San Marino (2007) 147 Cal.App.4th 1033, 1045.)

There is no exact formula for determining whether there is probable cause; [e]ach case must be decided on its own facts and circumstances . . . . [Citation.] (People v. Stanfill (1985) 170 Cal.App.3d 420, 423.)  In dealing with probable cause, . . . as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.  (Illinois v. Gates (1983) 462 U.S. 213, 231, citing Brinegar v. United States (1949) 338 U.S. 160, 175; see also People v. Love (1985) 168 Cal.App.3d 104, 108109.) It is well-settled that the determination of probable cause is based upon the totality of the circumstances known to the officers at the time of the search. (United States v. Bishop (9th Cir. 2001) 264 F.3d 919, 924.)

When the arrest occurred, the officers had no reason to believe that any crime had been or was about to be committed by defendant. No crime had been reported, although several robberies had been committed in the shopping center in the past. The officers had seized a firearm from D.M., but defendant had done nothing to indicate to the officers that he was either associated with the weapon or in possession of one himself. That the officers lawfully arrested defendants companion did not furnish a separate, particularized and objective basis for suspecting that defendant also engaged in criminal activity. (People v. Hester (2004) 119 Cal.App.4th 376, 392.) Unlike D.M., defendant did not attempt to flee, and was unconditionally cooperative with the officers. Further, no evidence was presented that defendant personally presented a risk to the officers. No inquiry was made of defendant before his arrest to determine if he even knew of D.M.s possession of the shotgun. The sum total of the officers knowledge in the case was that defendant was on probation, had been seen walking back and forth in front of a Safeway before he sat down to eat, and was in the company of someone in possession of a firearm. The circumstances presented to the officers may have justified a detention for investigation, but fell far short of probable cause to make an arrest. (See In re Antonio B., supra, 166 Cal.App.4th 435, 441443; In re Justin B., supra, 69 Cal.App.4th 879, 886888; People v. Williams (1970) 9 Cal.App.3d 565, 568.) Defendants arrest was not lawfully based on probable cause. (In re Justin B., supra, at p. 890.)

III. The Probation Search Condition.

The Attorney General seeks to justify the arrest and interrogation of defendant on the basis of the search condition attached to his juvenile probation. Defendant asserts that the officers were unaware of the search condition until after he was arrested, and their knowledge that he was on juvenile probation was not a sufficient basis to support the detention, absent specific knowledge that he had a search condition.[4]

In In re Jaime P. (2006) 40 Cal.4th 128, 130, the California Supreme Court overruled its prior decision in In re Tyrell J. (1994) 8 Cal.4th 68, and altered the rule that governs juvenile probation searches. The court determined that the search of a juvenile probationer by an officer who lacked probable cause of any criminal activity and was unaware that the juvenile had consented to a search as a condition of his probation when the search was conducted, was invalid. (In re Jaime P., supra, at pp. 137139.) The rule is now established that the officer must be aware of the search condition before conducting the search; after-acquired knowledge will not justify the search. (See People v. Sanders (2003) 31 Cal.4th 318, 335 [2 Cal.Rptr.3d 630, 73 P.3d 496] [suspicionless parole search of residence not justified by search condition of which officer was unaware].) (People v. Medina (2007) 158 Cal.App.4th 1571, 1577.) In the present case we have the distinguishing feature that the officers knew of defendants probationary status, though not specifically the search condition itself. The record also shows that the officers were told of the search condition after defendant was arrested without probable cause, but before his phone was examined and statements were taken from him.

We are not convinced that the officers were entitled to infer the existence of a search condition from their knowledge of defendants probationary status. A minor placed on probation is not invariably subject to a search condition, although a condition of juvenile probation whereby the juvenile consents to searches of his person or residence without a warrant or reasonable cause is standard. (In re R.V. (2009) 171 Cal.App.4th 239, 248; In re Binh L. (1992) 5 Cal.App.4th 194, 203.) The California Supreme Court has indicated that an officer must have knowledge of both the probationary or parole status and the search condition associated with it. The court in People v. Sanders, supra, 31 Cal.4th 318, 333, observed, [W]hether the parolee has a reasonable expectation of privacy is inextricably linked to whether the search was reasonable. A law enforcement officer who is aware that a suspect is on parole and subject to a search condition may act reasonably in conducting a parole search even in the absence of a particularized suspicion of criminal activity, and such a search does not violate any expectation of privacy of the parolee. (Italics added.) The court further warned in Sanders, that despite the parolees diminished expectation of privacy if the officer is unaware that the suspect is on parole and subject to a search condition, the search cannot be justified as a parole search, because the officer is not acting pursuant to the conditions of parole. (Ibid., italics added.) The court held that an otherwise unlawful search of the residence of an adult parolee may not be justified by the circumstance that the suspect was subject to a search condition of which the law enforcement officers were unaware when the search was conducted. (Id. at p. 335; see also Myers v. Superior Court (2004) 124 Cal.App.4th 1247, 12521253.)

For an additional and more fundamental reason, however, the search condition fails to render the arrest and seizure of evidence from defendant lawful: the officers did not conduct a search of defendant pursuant to the condition. At issue here is the admissibility of evidence seized and statements made during an interview conducted after the arrest of defendant without probable cause, not the seizure of evidence obtained through a search pursuant to a probation condition. Defendants probation condition may have authorized a search of his person at the scene of a detention, but not the much more intrusive arrest, confinement, and transfer to the police station that occurred. Further, defendants waiver of the right to be free from a search without a warrant or cause associated with the probation condition did not also encompass a waiver of the right to be free from an arrest without probable cause.[5] Even if the officers had consent by reason of the probation condition to search defendant, they required a separate lawful basis on which to arrest him. (See People v. Rivera (2007) 41 Cal.4th 304, 311.) Despite the searchcondition imposed upon him, defendant could nevertheless reasonably expect to remain free from an arrest without probable cause or a warrant.[6] This is also not a case in which the officers conducted a search of a residence pursuant to the defendants probation or parole search condition, then arrested the defendant pursuant to probable cause. Where officers are entitled by a search condition to enter a residence and conduct a search, they may also make a warrantless arrest armed with the probable cause needed to arrest any citizen. (People v. Lewis (1999) 74 Cal.App.4th 662, 672.) The officers in the present case had neither a warrant to arrest defendant nor probable cause to do so. We conclude that without probable cause the warrantless arrest was not justified by the subsequently discovered probation condition.

IV. The Admissibility of the Evidence and Statements Obtained Following the Arrest.

We turn to an evaluation of the admissibility of the evidence seized following the unlawful arrest. Defendant maintains that the photographs and statements were the fruit of the unconstitutional arrest or detention, and must be suppressed. The Attorney General responds that the discovery of defendants search condition attenuated any illegality that may have attached to his seizure.

Because of the particular interests protected by the Fourth Amendment, a statement must be suppressed, even when knowing, voluntary, and intelligent, if it is the direct product of an illegal arrest or detention. (People v. Boyer (1989) 48 Cal.3d 247, 267; see also People v. Jenkins (2004) 122 Cal.App.4th 1160, 11701171.) Rejecting a strict but for test, the United States Supreme Court has admonished that in such cases, the more apt question . . . is whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint. [Citation.] (Wong Sun[ v. United States (1963)] 371 U.S. 471, 488.) Under Wong Sun, evidence is not to be excluded merely because it would not have been obtained but for the illegal police activity. [Citation.] The question is whether the evidence was obtained by the governments exploitation of the illegality or whether the illegality has become attenuated so as to dissipate the taint. [Citation.] [Citation.] (People v. Boyer (2006) 38 Cal.4th 412, 448.)  The degree of attenuation that suffices to dissipate the taint requires at least an intervening independent act by the defendant or a third party to break the causal chain in such a way that the [incriminating evidence] is not in fact obtained by exploitation of the illegality. [Citations.] [Citation.] (People v. Medina (2003) 110 Cal.App.4th 171, 178.) [T]he Supreme Court in Brown v. Illinois [(1975) 422 U.S. 590, 603604] identified four factors a court should consider in determining whether a defendants confession was the product of free will or the result of exploiting an illegal arrest. Those factors are: the giving of a Miranda warning, the temporal proximity of the arrest and confession, the presence of intervening circumstances and the purpose and flagrancy of the official misconduct. (People v. Gonzalez (1998) 64 Cal.App.4th 432, 442.) Nonetheless, the ultimate question remains whether there is   an intervening independent act by the defendant or a third party to break the causal chain in such a way that the . . . confession is not in fact obtained by exploitation of the illegality.  [Citations.] (People v. Jenkins, supra, at pp. 11791180.) The prosecution bears the burden of showing that evidence is not the fruit of illegal arrest or search and is therefore admissible. (People v. Willis (2002) 28 Cal.4th 22, 38.) [T]he more attenuated the confession is from the unlawful arrest that is the more the confession is the product of the defendants free will and the less it is the product of the initial illegality the less effect suppressing the confession will have on deterring unlawful arrests. (People v. Gonzalez, supra, at p. 443.)

No evidence before us indicates that the photographs or statements given by defendant resulted from an independent intervening act. The record discloses that defendant was subjected to a patently unlawful arrest and confinement without probable cause, after which his phone was examined. The officers did not testify that defendant was given Miranda warnings before his confession of ownership of the weapon, and it appears that the temporal proximity between the illegal arrest and the statement was relatively close. So far as we can tell from the record, defendant also remained in police custody and police company from the time of his arrest to the time of his admission. (People v. Gonzalez, supra, 64 Cal.App.4th 432, 447.) His subsequent statement flowed directly from the inherently coercive circumstances of the arrest and continued confinement, without any attenuation by superseding forces or events. (People v. James (1977) 19 Cal.3d 99, 109; People v. Medina, supra, 110 Cal.App.4th 171, 178179; People v. Valenzuela (1994) 28 Cal.App.4th 817, 833.) Statements produced by an illegal arrest or detention are not voluntary. (People v. $48,715 United States Currency (1997) 58 Cal.App.4th 1507, 1514; People v. Valenzuela, supra, at p. 833.) Also, the photos and the statements would not have been inevitably obtained without the illegality. Absent the unauthorized arrest and prolonged confinement, defendant would have and should have been released, since the officers had no probable cause to hold him. (People v. Jenkins, supra, 122 Cal.App.4th 1160, 1178.) There being no intervening circumstance to dispel the taint of the illegal detention, we find that the statement was obtained through exploitation of the illegal arrest. (Ibid.; see also Wilson v. Superior Court, supra, 34 Cal.3d 777, 783784, 791; In re Antonio B., supra, 166 Cal.App.4th 435, 442; People v. Medina, supra, at pp. 178179; People v. Valenzuela, supra, at p. 833.)

V. The Good Faith Exception to the Exclusionary Rule.

Finally, we consider the Attorney Generals argument that despite the illegal arrest the evidence is admissible pursuant to the good faith exception to the exclusionary rule. (United States v. Leon (1984) 468 U.S. 897, 922 (Leon).) The Attorney General asserts that an honest mistake about the existence of probable cause was not an intentional or even grossly negligent violation of defendants constitutional rights, so the evidence need not be excluded.

Under the good faith exception to the exclusionary rule, evidence will not be suppressed if the police officer had an objectively reasonable belief the search or seizure was constitutionally permissible. (People v. Pearl (2009) 172 Cal.App.4th 1280, 1292.) The good faith exception found in Leon rests on the deterrent purpose for the exclusionary rule. Exclusion as a remedy for Fourth Amendment violations was designed to deter police misconduct. Thus, when an officer acts in objective good faith reliance on a search warrant, [p]enalizing the officer for [a] magistrates error, rather than his [or her] own, cannot logically contribute to the deterrence of Fourth Amendment violations. [Citation.] (People v. Sun (2007) 148 Cal.App.4th 374, 387388, fn. omitted.) However, suppression remains appropriate where an officers reliance on a search warrant was not objectively reasonable, i.e., the officer had no reasonable grounds for believing that the warrant was properly issued. [Citation.]  Grounding the [good faith exception] in objective reasonableness . . . retains the value of the exclusionary rule as an incentive for the law enforcement profession as a whole to conduct themselves in accord with the Fourth Amendment. [Citations.] [Citation.] (People v. Willis, supra, 28 Cal.4th 22, 31.) The burden of proving the good faith exception is on the prosecution. (Id. at p. 36; People v. Pearl, supra, at p. 1292.)

Recently, in Herring v. United States (2009) 129 S.Ct. 695, 700 (Herring), a case in which a search incident to an arrest yielded drugs and a gun, the United States Supreme Court reiterated the good faith exception: The fact that a Fourth Amendment violation occurred i.e., that a search or arrest was unreasonable does not necessarily mean that the exclusionary rule applies. [T]he exclusionary rule is not an individual right and applies only where it  result[s] in appreciable deterrence.  [Citations.] (Ibid.) The culpability of the police in Herring was the result of isolated negligence attenuated from the arrest. (Id. at p. 698, italics added.) The warrant for defendants arrest had been recalled months earlier, but this information had never been entered into the database. (Ibid.) The court concluded: To trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system. As laid out in our cases, the exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence. The error in this case does not rise to that level. (Id. at p. 702.)

Though we assume the officers in the present case acted in good faith at least in the sense that they legitimately sought to protect themselves and the suspects we find that for several reasons the prosecution failed to satisfy its burden of establishing the good faith exception to the exclusionary rule. First, the prosecution did not invoke, argue, or present any evidence to support the good faith exception to the exclusionary rule. Thus, we are not entirely aware of the nature and culpability of the police misconduct. One of the officers testified that he thought defendants probationary status justified a detention and investigation, but nothing in the record suggests that the officers believed they possessed probable cause for the arrest and prolonged confinement of defendant. Further, in contrast to Herring, the police misconduct in the present case is intimately associated with the arrest, not attenuated from it. The exclusionary rule has been applied consistently in cases involving a warrantless arrest made without probable cause. (People v. Jenkins, supra, 122 Cal.App.4th 1160, 1177.) Applying the exclusionary rule to warrantless arrests made without probable cause will also  deter further violations. [Citation.] (Ibid.)  [T]here is no good-faith exception to the exclusionary rule for police who do not act in accordance with governing law. [Citation.] To create an exception here would defeat the purpose of the exclusionary rule, for it would remove the incentive for police to make certain that they properly understand the law that they are entrusted to enforce and obey. [Citation.] (People v. Cox (2008) 168 Cal.App.4th 702, 711; see also People v. White (2003) 107 Cal.App.4th 636, 644.) The arrest of defendant was manifestly unreasonable, and [r]efusal to apply the exclusionary rule in this case would reward police misconduct, not deter it. (Myers v. Superior Court, supra, 124 Cal.App.4th 1247, 1256.) We therefore conclude that the juvenile court erroneously admitted the evidence and statements unlawfully taken from defendant following his arrest. (In re Joshua J. (2005) 129 Cal.App.4th 359, 365.)

Accordingly, the judgment is reversed and the case is remanded to the juvenile court for proceedings consistent with the views expressed herein.[7]

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[1] The additional charged offense of possession of a sawed-off shotgun (Pen. Code,  12020, subd. (a)) was dismissed.

[2] Our recitation of the facts is taken from the evidence presented at the suppression hearing. For the sake of confidentiality, we will refer to the involved parties and witnesses, with the exception of the officers, by their initials.

[3] The officers did not know if the two juveniles were able to identify them as police officers before they walked away from the Safeway.

[4] We find that the effect of defendants probation search condition on the validity of the arrest was presented and litigated in the juvenile court, so no forfeiture of the issue by defendant resulted. In any event, the prosecution has the burden of establishing an exception to the warrant requirement based on a probation condition or other consent to search. (See People v. Lazalde (2004) 120 Cal.App.4th 858, 865; People v. Keller (1978) 76 Cal.App.3d 827, 839.)

[5] We realize that a juvenile cannot refuse a grant of probation and has no choice whether or not to consent to a condition of probation that subjects him to a warrantless search. (In re Tyrell J., supra, 8 Cal.4th 68, 83.)

[6] To the extent that the decision in People v. Velasquez (1993) 21 Cal.App.4th 555, 558559, is to the contrary and holds that by consenting to a search condition a defendant also waives the right to assert the illegality of his or her arrest, we disagree with the essential premise in the majority opinion that a reasonable person would expect a waiver of the right to be free from searches and seizures without cause or warrant to include a waiver of the right to be free from illegal arrests. To emphasize the distinction between a search and arrest condition under these circumstances, we point out that a probation condition that authorized the arrest of a probationer at any time without a warrant or probable cause would present serious questions of constitutional validity.

[7] In light of our conclusion, defendants accompanying petition for writ of habeas corpus (A126002) will be dismissed as moot by order filed this date.