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Official Opinion 99-7

Official Opinion 99-7

April 16, 1999
To: 

Executive Director
Georgia Peace Officer Standards and Training Council

Re: 

"Registered" or "exempt" peace officers who otherwise meet the certification requirements of Chapter 8 of Title 35 have the same authority as that of certified peace officers.

You have requested an official opinion as to whether a registered or exempt peace officer has the same authority as that of a certified peace officer. Specifically, your question relates to whether or not a registered or exempt peace officer can make application for a search warrant in light of the decision in Holstein v. State, 183 Ga. App. 610 (1987), where the Court of Appeals held that only an officer that complied with the conditions of certification pursuant to O.C.G.A. Ch. 35-8 may successfully apply for a search warrant. The court’s decision in Holstein centered on a motion to suppress evidence seized pursuant to a search warrant that was applied for by a non-certified officer. The court reasoned that due to the officer’s lack of “compliance with the conditions of certification,” the officer had no authority to apply for a search warrant under O.C.G.A. § 17-5-20 and, thus, the evidence seized pursuant to the execution of the illegal warrant should have been suppressed. Guided by the statutory language found within O.C.G.A. Ch. 35-8, the Georgia Peace Officer Standards and Training Act, the court held, “[n]oncompliance with the conditions of OCGA Ch. 35-8, by the express terms of § 35-8-17(a), renders the exercise of any powers of a law enforcement officer unauthorized.” Holstein, 183 Ga. App. 610, 611 (1987). Thus, any officer that complies with the conditions of certification shall be authorized to exercise the powers of a law enforcement officer, which includes the power to apply for a search warrant. O.C.G.A. § 17-5-20.

The Official Code of Georgia Annotated §§ 35-8-8 and 35-8-9 list the requirements of certification referred to in Holstein. These requirements include: meeting a minimum age of 18, having United States citizenship, having a high school diploma, not having a substantial criminal record, possessing good moral character, completing a job related academy entrance examination, and satisfactorily completing a basic training course. Peace officers that meet these requirements are eligible to receive certification from the council. Once given certification, these peace officers are referred to as “certified.”

Additionally, under O.C.G.A. § 35-8-10, peace officers who commenced “employment or service prior to July 1, 1975, and whose employment continues on July 1, 1975, are exempt and excused” from some of the certification requirements listed above, so long as the officers are properly registered with the council. Peace officers that satisfy the requirements under O.C.G.A. § 35-8-10 are referred to as “registered” or “exempt.” Therefore, any peace officer who is in compliance with Ch. 35-8, and specifically, in compliance with the requirements of certification, has the authority to exercise the power of a law enforcement officer. The means by which an officer satisfies the requirements is not the critical factor; it is the fact of compliance that is essential.

In sum, an “exempt” or “registered” peace officer who otherwise meets the certification requirements of Chapter 8 of Title 35 in Georgia has the same authority and limitations as that of a “certified” peace officer in all respects relevant to law enforcement duties, including the ability to apply for a search warrant.

Prepared by:

ANDREA S. HIRSCH
Assistant Attorney General