What happens if an Idaho sheriff lets a deputy keep working as a peace officer without P.O.S.T. certification past the one-year deadline?

Subject

Opinion 87-1: Peace officers must obtain P.O.S.T. certification and training within one year of employment.

Plain-English summary

Canyon County Prosecutor Richard Harris asked Attorney General Jim Jones what could happen when a sworn full-time deputy continued to perform peace officer duties more than a year after being hired without ever completing the certification required by Idaho Code § 19-5109(b). The opinion catalogued an unusually long list of "grave consequences" running to the deputy, the sheriff, the county commissioners, and the county itself.

The legislature had set up the Peace Officer Standards and Training Council (P.O.S.T. Council) to impose a uniform statewide standard for peace officer competence rather than 44 county-by-county versions. Title 19, ch. 51 of the Idaho Code required certification by P.O.S.T. of all full-time peace officers within one year of employment. The exceptions, listed narrowly in § 19-5109(a), did not cover regular deputy sheriffs.

If an officer kept working uncertified, the opinion identified five categories of fallout. The officer could be prosecuted under § 18-703 (officer acting without authority of law) and § 18-711 (unlawfully exercising peace officer functions, a felony). The sheriff could be a party to those crimes under § 18-204. Cases the officer brought could be dismissed and the officer's evidence suppressed under the exclusionary-rule logic of Weeks v. U.S. and Mapp v. Ohio. County commissioners who approved the salary expenditure for an unqualified officer could face liability under art. VII, § 10, of the Idaho Constitution, which makes it a felony to use public funds for purposes not authorized by law. And the individual officer, the agency, and the county could face civil liability for whatever powers an unqualified officer abused.

Beyond consequences, the opinion outlined who could enforce the certification rule. P.O.S.T. Council itself had standing to seek a writ of prohibition under § 7-401 against an uncertified officer or his employing agency. The Council could also seek a writ of mandate under § 7-302 to force compliance. County commissioners had general supervisory authority over county officers under §§ 31-801, 802, 828 and could refuse to pay claims for an uncertified officer's services under § 31-1605, with that refusal supported by the constitutional bar on unlawful expenditure of public funds.

Currency note

This opinion was issued in 1987. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

P.O.S.T. Council statutes have been amended several times since 1987, and the federal exclusionary rule has continued to evolve through cases on good-faith reliance and standing. Anyone advising a sheriff's office today on the consequences of late or missing certification should consult the current text of Idaho Code Title 19, Chapter 51, the current P.O.S.T. Council administrative rules, and the modern case law on suppression and civil liability, not the 1987 framing here.

What the opinion meant for sheriff's offices in 1987

For sheriffs, the opinion set out a clear chain of risk. Keeping an uncertified deputy past the one-year deadline was not just a regulatory breach; it could be a felony for the deputy, expose the sheriff to charges as a party, and open the county to civil suit. Sheriffs who could not get a deputy through P.O.S.T. by the one-year mark needed to either remove the deputy from peace officer duties or accept that everything the deputy did from that point forward would be vulnerable to attack.

For county commissioners, the opinion gave both a check and a duty. The duty was to refuse claims for an uncertified officer's services. The check was that authorizing those payments anyway could itself be a constitutionally defined felony under art. VII, § 10, plus a civil violation. Commissioners had real exposure to liability if they kept signing payroll for an officer they knew was not certified.

For prosecutors, the opinion implied a delicate calculus. An uncertified officer's testimony or evidence could be excluded; cases built on it could fail or be dismissed. The opinion noted that some Idaho courts had already disallowed testimony from uncertified officers and dismissed complaints filed by them. Prosecutors who knew an officer was uncertified had to decide between trying cases that might fall apart and dismissing them themselves "to shield the prosecutor from confederacy in this type of recalcitrance."

For P.O.S.T. Council, the opinion confirmed standing to use the extraordinary writs to enforce certification. A writ of prohibition could halt action by the uncertified officer or the sheriff who employed him. A writ of mandate could force the certification process to be completed.

Common questions

Did the one-year clock start at hiring or at the start of peace-officer duties?
At hiring. The opinion read § 19-5109(b) to require certification "within one year of employment by a law enforcement agency as a peace officer." Once a person was hired into a peace officer role, the clock ran.

Were any peace officers exempt from the one-year requirement?
Yes, but the exceptions in § 19-5109(a) were narrow: elected officials, city police chiefs, the superintendent of the Idaho State Police, and peace officers whose primary duties involved motor vehicle parking and animal control under city or county ordinance. Regular deputy sheriffs were not exempt.

What was the criminal exposure for the deputy?
Two statutes applied. Idaho Code § 18-703 made it a misdemeanor for an officer or someone "pretending to be a public officer" to act under "pretense or color" of authority. Idaho Code § 18-711 made it a felony to "unlawfully exercise or attempt to exercise the functions of . . . a deputy sheriff." An uncertified deputy past the one-year mark fell squarely in § 18-711.

Could the sheriff be charged criminally?
Yes, as a party. Idaho Code § 18-204 makes party liability available for those who aid or counsel the principal. The opinion concluded that a sheriff who retained an uncertified deputy past the deadline could be charged alongside the deputy.

Could county commissioners refuse to pay an uncertified officer's salary?
Yes, and arguably had to. The opinion read art. VII, § 10, of the Idaho Constitution, which forbids the use of public funds "for any purpose not authorized by law" and makes such use a felony, as authorizing commissioners to disallow claims for the salary of an uncertified deputy. Approving the claim could itself be a violation, exposing the commissioners to liability.

What happened to evidence and testimony from an uncertified officer?
Some Idaho courts had already begun excluding it. The opinion observed that "courts of record" had inherent power to exclude evidence obtained in violation of law and to refuse the work product or testimony of a person not lawfully empowered to do peace officer work. Some Idaho courts had dismissed criminal complaints filed by uncertified officers. The opinion treated this as appropriate court authority and warned prosecutors to expect more of it.

Background and statutory framework

The Peace Officer Standards and Training Council was created by Title 19, Chapter 51, of the Idaho Code to establish "minimum basic training" requirements (§ 19-5109(a)(1)), set probationary and emergency-service standards (§ 19-5109(a)(2), (3)), and certify officers as eligible for permanent employment (§ 19-5109(a)(7)). Section 19-5101(d) defined a peace officer as a full-time employee of a law enforcement agency whose duties primarily consist of crime prevention, detection, and enforcement of penal, traffic, or highway laws.

Section 19-5109(b) required certification within one year of employment for any peace officer hired after January 1, 1974, except elected officials, city police chiefs, the State Police superintendent, and parking/animal-control officers. The opinion noted that the legislative design was to impose a uniform statewide standard set by professionals, rather than 44 different county-by-county standards set by individual sheriffs.

The opinion paired this with Idaho's general toolkit for compelling official compliance: writs of prohibition under § 7-401 and writs of mandate under § 7-302. It also relied on the constitutional and statutory framework giving county commissioners supervisory authority over other county officers (Idaho Const. art. XVIII, § 6; Idaho Code §§ 31-801, 802, 828) and over claims for expenditure (§ 31-1605).

The Fourth Amendment exclusionary cases Weeks v. United States, 232 U.S. 383 (1914), and Mapp v. Ohio, 367 U.S. 643 (1961), set up the broader principle that courts have inherent authority to refuse to acquiesce in unlawful conduct by accepting its fruits. The opinion extended that principle by analogy: a person who is not lawfully empowered to do peace officer work has produced unlawful work, and a court can refuse to use it.

Citations

• Idaho Constitution, art. VII, § 10
• Idaho Constitution, art. XVIII, § 6
• Idaho Code § 7-302 (writ of mandate)
• Idaho Code § 7-401 (writ of prohibition)
• Idaho Code § 18-204 (party liability)
• Idaho Code § 18-703 (officer acting without authority)
• Idaho Code § 18-711 (unlawful exercise of peace officer functions)
• Idaho Code § 19-5101(d) (peace officer definition)
• Idaho Code § 19-5109(a), (b) (P.O.S.T. duties; one-year certification deadline)
• Idaho Code §§ 31-801, 31-802, 31-828 (county commissioner powers)
• Idaho Code § 31-1605 (claims for county expenditure)
• Idaho Code Title 19, ch. 51 (P.O.S.T. Council)
• Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961)
• Smylie v. Williams, 81 Idaho 335, 341 P.2d 457 (1959)
• Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914)
• Idaho Attorney General Opinion No. 81-7
• Idaho Attorney General Opinion No. 86-10
• Idaho Attorney General 1983 Legal Guideline, p. 168

Source

• Landing page: https://www.ag.idaho.gov/office-resources/opinions/
• Original PDF: https://ag.idaho.gov/content/uploads/2018/04/OP87-01.pdf

Original opinion text

STATE OF IDAHO
OFFICE OF THE ATTORNEY GENERAL

JIM JONES
ATTORNEY GENERAL

BOISE 83720

TELEPHONE
(208) 334-2400

ATTORNEY GENERAL OPINION NO. 87-1

Richard L. Harris, Esq.
Canyon County Prosecutor
P.O. Box 668
Caldwell, ID 83606-0668

Request for Attorney General's Opinion

RE: Certification of Peace Officers in Idaho

Dear Mr. Harris:

QUESTION PRESENTED

On behalf of the Canyon County Commissioners, you have asked for legal guidance regarding the meaning and implementation of Idaho Code § 19-5109(b) relating to certification of peace officers in the state of Idaho.

CONCLUSION

It is our conclusion that the individual "officer," the law enforcement agency that employs him and the political subdivision of the state where the agency functions may all encounter grave consequences by ignoring the certification statute where such employee continues to carry out peace officer duties without the statutorily required training and certification. The officer may incur criminal liability; the cases the officer takes to court may be dismissed or the officer's evidence excluded; the public officials of the political subdivision that authorizes payment of his salary may be guilty of a constitutionally defined felony; and the individual, the agency, and the political subdivision may incur civil liability to persons upon whom such an employee exercises power given only to duly qualified and appointed peace officers.

ANALYSIS

Your letter refers to a situation in the sheriff's office where a sworn full-time deputy exercising all of the powers of a peace officer for prevention and detection of crime continues to serve in such capacity for more than one year after such employment without ever becoming trained and certified pursuant to Idaho Code § 19-5109(b).

The policy of our legislature is clear that there shall not be 44 different standards of competence for peace officers throughout Idaho counties but a uniform standard to be set by the law enforcement professionals who comprise the council for Peace Officer Standards and Training (hereafter "POST"). No individual sheriff or county, police chief or city shall set the standards or qualifications for peace officers; but these are entrusted to POST Council.

Title 19, ch. 51, Idaho Code, establishes POST Council and prescribes its duties, powers, and composition. The law requires certification by POST of all persons who carry out the function of peace officer, such certification to be completed within one year of employment by a law enforcement agency as a peace officer.

The requirements of certification apply to all persons who are full-time employees of a police or law enforcement agency that is a part of or administered by the state or any political subdivision. Idaho Code § 19-5101(d). A law enforcement agency means an agency whose activities pertain to crime prevention or reduction and includes police, courts, prosecution, corrections, rehabilitation, and juvenile delinquency. Idaho Code § 19-5101(c). Certification is required of all whose duties include and primarily consist of the prevention and detection of crime and the enforcement of penal, traffic, or highway laws of this state or any political subdivision.

The intent of the legislature is clear from the wording of the law. There are no ambiguities and the exceptions to certification are narrow and clearly defined in Idaho Code § 19-5109(a):

It shall be the duty of and the council shall have the power:
(1) To establish the requirements of minimum basic training which peace officers shall complete in order to be eligible for permanent employment as peace officers, and the time within which such basic training must be completed.
(2) To establish the requirements of minimum education and training standards for employment as peace officers in probationary, temporary, part-time, and/or emergency positions.
(3) To establish the length of time a peace officer may serve in a probationary, temporary, and/or emergency position.
. . .
(7) To certify peace officers as having completed all requirements established by the council in order to be eligible for permanent employment as peace officers in this state. (Emphasis added)

It is clear that the legislature has given broad authority to POST to supervise the training and standards of peace officers throughout the state. The legislative grant of authority cannot be viewed as a hollow commission. The language of the statute giving power to POST is mandatory not precatory; it is an effective grant of power to POST Council to establish, supervise and enforce standards for peace officers throughout the state.

Likewise, the legislature has clearly mandated that in order for a person to have peace officer status and power, that person must comply with the standards and training which ch. 51, title 19, Idaho Code, places under the auspices of POST Council:

After January 1, 1974, any peace officer as defined in § 19-5101(d), Idaho Code, employed after January 1, 1974, except any elected official, any city police chief, the superintendent of the Idaho State Police, and those peace officers whose primary duties involve motor vehicle parking and animal control pursuant to city or county ordinance, shall be certified by the Council within one (1) year of employment. (Emphasis supplied)

While the statute is silent as to who has the responsibility to enforce certification, the remainder of our analysis will set forth several ways in which it can be enforced, and will also describe the untoward consequences that may flow from ignoring the statute.

In the first instance, it is apparent that POST Council itself would have standing to seek compulsory process against an uncertified "officer," or against a sheriff or county which hires such an individual. A writ of prohibition may lie to arrest the actions and proceedings of a sheriff and an uncertified deputy "where such proceedings are without . . . the jurisdiction of the . . . person." Idaho Code § 7-401. Conversely, a writ of mandate may also be available to insure compliance with the certification law since such an extraordinary writ may be issued "to compel the performance of an act which the law especially enjoins as a duty resulting from an office, trust or station." Idaho Code § 7-302.

Moreover, ignoring the certification statute by refusing to fulfill the training required by POST puts the supposed peace officer in violation of criminal statutes. A person who exercises police functions without the authority of law is guilty of a criminal offense:

Every public officer or person pretending to be a public officer, who, under the pretense or color of any process or other legal authority, arrests any person or detains him against his will, or seizes or levies upon any property, or dispossesses anyone of any lands or tenements, without a regular process or other lawful authority therefor, is guilty of a misdemeanor.

Idaho Code § 18-703.

A sheriff and his uncertified deputy and other county officers must also consider the consequences of Idaho Code § 18-711 entitled "Unlawful exercise of functions of peace officers." This section makes it a felony offense for any person in this state to "unlawfully exercise or attempt to exercise the functions of . . . a deputy sheriff." A person who does not become certified by POST within one year of becoming employed by a sheriff as a peace officer is exercising the functions of a deputy sheriff unlawfully. Idaho Code § 19-5109(b). Any sheriff who retains an uncertified deputy may also be a party to the violation of the law and may be prosecuted. Idaho Code § 18-204.

On another plane, a law enforcement agency hiring an uncertified deputy may find that in processing certain criminal cases the doors of the criminal justice system are closed. It is well established that courts have by judicial implication inherent power to exclude evidence obtained in violation of law. Weeks v. U.S., 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914); Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). Courts have found it appropriate in contexts analogous to the present to exclude evidence where admission of the evidence would put the court in the unseemly position of acquiescing in unlawful conduct.

A court of record of this state could, therefore, refuse to accept the work product or testimony of a person who is not certified as required by the statute. It has come to our attention that some courts of our state have disallowed and suppressed the testimony of a person claiming to be a peace officer but who had not been certified as required by statute. Likewise, it has come to our attention that courts in our state have dismissed criminal complaints filed by persons who represented themselves to be peace officers, but who were not in compliance with the certification statute. Courts within your jurisdiction could employ similar procedures.

In like manner, the prosecuting attorney could properly refuse to proceed with cases in which an uncertified officer figures as an indispensable part of the presentation of the state's case. Pursuant to his broadly accorded prosecutorial discretion (see, Idaho Attorney General Opinion No. 81-7 and 1983 legal guideline of the Attorney General's Office, p. 168), a motion for dismissal would be a fitting, albeit unfortunate, sanction to shield the prosecutor from confederacy in this type of recalcitrance.

The Board of County Commissioners also has the power to require a county officer to comply with the law (see, Idaho Attorney General Opinion 86-10). The Board exercises general supervisory authority over the other county officers. Idaho Code §§ 31-801, 802, 828. The county commissioners' powers include the setting of the budget for and the acceptance of claims for expenditures by county officials. Idaho Code § 31-1605. The Idaho Constitution entrusts the county commissioners with the power to supervise the hiring of deputies by the sheriff and the power to set compensation for the sheriff's deputies. Art. XVIII, § 6, Idaho Constitution. The Constitution also prohibits use of public funds for purposes which violate the laws passed by the legislature. "The making of profit, directly or indirectly, out of state, county, city, township, or school district money, or using the same for any purpose not authorized by law, by any public officer, shall be deemed a felony." Art. VII, § 10, Idaho Constitution. Under the very broad wording of this section, the county commissioners would be justified in refusing to allow a claim for payment of services of a person employed to fill a peace officer position in the sheriff's office, but who is not properly certified and empowered to act as a peace officer. Indeed, payment of such a claim would expose the Commissioners themselves to criminal liability.

In addition to the above, county officials must be vigilant to avoid the civil liability a county or a sheriff's office might incur by having a person functioning in the capacity of a peace officer who, in fact, lacks such training and authority. The potential consequences are grave under both federal code and state statute if a person who has not been properly trained and supervised is entrusted with peace officer power and abuses that power.

In conclusion, it is clear that a sheriff does not have the power to retain a deputy with full peace officer powers beyond one year of such deputy's full-time employment without the deputy becoming trained and certified by POST. Disregard of a statute requiring certification would be unlawful in view of the deleterious consequences, civil and criminal, which may affect the individual "officer," the sheriff, the county commissioners and the residents of said county.

AUTHORITIES CONSIDERED

Art. VII, § 10, Idaho Constitution
Art. XVIII, § 6, Idaho Constitution
Idaho Code § 7-302
Idaho Code § 7-401
Idaho Code § 18-204
Idaho Code § 18-703
Idaho Code § 19-5101(d)
Idaho Code § 19-5109(a), (b)
Idaho Code §§ 31-801, 802, 828
Idaho Code § 31-1605
Title 19, ch. 51, Idaho Code
Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961)
Smylie v. Williams, 81 Idaho 335, 341 P.2d 457 (1959)
Weeks v. U.S., 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914)
Idaho Attorney General Opinion No. 81-7
Idaho Attorney General Opinion No. 86-10
Idaho Attorney General 1983 Legal Guideline, p. 168

DATED this 22nd day of January, 1987.

ATTORNEY GENERAL
State of Idaho

ANALYSIS BY:
D. MARC HAWS
Deputy Attorney General
Chief, Criminal Justice Division

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