| 1 | A bill to be entitled |
| 2 | An act relating to confidential informants; providing a |
| 3 | short title; providing legislative intent; defining terms; |
| 4 | prohibiting a law enforcement agency from selecting |
| 5 | certain specified persons to act as confidential |
| 6 | informants; providing exceptions; requiring that any |
| 7 | agreement between a law enforcement agency and a |
| 8 | confidential informant be reduced to writing and signed by |
| 9 | certain designated parties; requiring a law enforcement |
| 10 | agency to notify the confidential informant of his or her |
| 11 | right to legal counsel before executing an assistance |
| 12 | agreement; requiring recordkeeping; providing requirements |
| 13 | for the proper use of confidential informants; providing |
| 14 | an effective date. |
| 15 |
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| 16 | Be It Enacted by the Legislature of the State of Florida: |
| 17 |
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| 18 | Section 1. Confidential informants.-- |
| 19 | (1) SHORT TITLE.--This section may be cited as "Rachel's |
| 20 | Law." |
| 21 | (2) LEGISLATIVE INTENT.-- |
| 22 | (a) The Legislature recognizes that by using confidential |
| 23 | informants in law enforcement undercover operations, law |
| 24 | enforcement agencies can improve efforts to reduce crime and |
| 25 | remove dangerous criminals from the community. However, because |
| 26 | many confidential informants are not trained law enforcement |
| 27 | personnel, the Legislature believes that if a law enforcement |
| 28 | agency elects to use a confidential informant, the agency must |
| 29 | take special care when evaluating the abilities of the |
| 30 | confidential informant to perform the required tasks of the |
| 31 | undercover operation and must, at all times, closely supervise |
| 32 | the activities of the confidential informant. The Legislature |
| 33 | further recognizes that a confidential informant's participation |
| 34 | in a law enforcement undercover operation may be detrimental and |
| 35 | dangerous to the informant and to others. Therefore, it is the |
| 36 | intent of the Legislature to allow law enforcement agencies to |
| 37 | use confidential informants, but to do so in a fair and |
| 38 | reasonably safe manner in order to reduce adverse risks, |
| 39 | including injury or death, to the confidential informant, law |
| 40 | enforcement personnel, the target offender, and the public. |
| 41 | (b) The Legislature also finds that there are no |
| 42 | statewide, uniform standards or guidelines applicable when using |
| 43 | confidential informants. Therefore, it is the intent of the |
| 44 | Legislature that the minimum standards set forth in this section |
| 45 | be followed by all law enforcement agencies in this state when |
| 46 | using confidential informants. |
| 47 | (3) DEFINITIONS.--As used in this section, the term: |
| 48 | (a) "Confidential informant" means a person who is not |
| 49 | employed by a law enforcement agency and who, in exchange for |
| 50 | consideration, supplies information about potential criminal |
| 51 | activity to law enforcement personnel or participates in a law |
| 52 | enforcement undercover operation. |
| 53 | (b) "Consideration" means anything of value, including, |
| 54 | but not limited to, monetary payment; leniency considerations |
| 55 | concerning any criminal activity, charge, or potential charge; |
| 56 | or a recommendation from a law enforcement agency for a |
| 57 | reduction of a criminal charge or sentence. |
| 58 | (c) "Controlled buy" means the purchase of stolen goods, |
| 59 | controlled substances, or the like from a target offender which |
| 60 | is initiated, managed, overseen, or participated in by law |
| 61 | enforcement personnel with the knowledge of the confidential |
| 62 | informant. |
| 63 | (d) "Law enforcement undercover operation" means an |
| 64 | investigative technique in which a law enforcement agency uses a |
| 65 | confidential informant to: |
| 66 | 1. Assume a covert identity or purpose in order for the |
| 67 | confidential informant to take action to acquire evidence or |
| 68 | information that would likely be unavailable but for the target |
| 69 | offender's reliance on the confidential informant's covert role; |
| 70 | or |
| 71 | 2. Participate in a controlled buy from a target offender |
| 72 | who is under investigation. |
| 73 | (e) "Substantial assistance agreement" means a written |
| 74 | contract between a law enforcement agency and a confidential |
| 75 | informant who has been charged with or convicted of a crime, or |
| 76 | who may be charged with a crime, which provides that the state |
| 77 | attorney may move the sentencing court to reduce or suspend the |
| 78 | sentence of the confidential informant or reduce or dismiss |
| 79 | charges if the confidential informant provides assistance to the |
| 80 | law enforcement agency or state attorney by assisting in the |
| 81 | identification, arrest, or conviction of a codefendant, an |
| 82 | accessory, a coconspirator, a principal, or any other person |
| 83 | believed to be engaged in a violation of state law. |
| 84 | (f) "Target offender" means the person who a law |
| 85 | enforcement agency suspects will be implicated by the activities |
| 86 | of a confidential informant. |
| 87 | (4) SELECTING CONFIDENTIAL INFORMANTS RECEIVING SUBSTANCE |
| 88 | ABUSE TREATMENT OR ON PAROLE OR PROBATION.--Except as provided |
| 89 | in this subsection and paragraph (6)(c), a law enforcement |
| 90 | agency may select any qualified person to act as a confidential |
| 91 | informant. A law enforcement agency may not use a person as a |
| 92 | confidential informant in a law enforcement undercover operation |
| 93 | if that person is: |
| 94 | (a) Currently participating in a court-ordered drug or |
| 95 | substance abuse treatment program unless the law enforcement |
| 96 | agency receives express approval from the circuit judge |
| 97 | supervising the drug court. When determining whether the person |
| 98 | may be used as a confidential informant, the judge shall |
| 99 | consider whether the person's participation as a confidential |
| 100 | informant may jeopardize the success of his or her treatment |
| 101 | program. |
| 102 | (b) Voluntarily enrolled in a drug or substance abuse |
| 103 | treatment program unless the law enforcement agency receives the |
| 104 | express approval from the state attorney of the circuit in which |
| 105 | the law enforcement agency is located. Before approving this |
| 106 | person's participation as a confidential informant, the state |
| 107 | attorney shall consult with the person's treatment provider and |
| 108 | reasonably determine whether the person's participation as a |
| 109 | confidential informant may jeopardize the success of his or her |
| 110 | treatment program. |
| 111 | (c) Currently on parole or probation unless the law |
| 112 | enforcement agency receives the express approval from the state |
| 113 | attorney in the circuit in which the law enforcement agency is |
| 114 | located and the approval of the parole or probation officer |
| 115 | supervising the parolee or probationer. |
| 116 | (5) SUBSTANTIAL ASSISTANCE AGREEMENTS; RIGHT TO LEGAL |
| 117 | COUNSEL; RECORDKEEPING AND WRITTEN PROTOCOLS.-- |
| 118 | (a) Before a proposed confidential informant provides any |
| 119 | assistance to a law enforcement agency, all plea negotiations |
| 120 | and consideration offered to the proposed confidential informant |
| 121 | must be reduced to a written substantial assistance agreement |
| 122 | that is executed by the law enforcement agency and the |
| 123 | confidential informant and approved by the state attorney |
| 124 | prosecuting the case. The substantial assistance agreement must |
| 125 | include a description of the work that the confidential |
| 126 | informant will be doing, the length of service, and the |
| 127 | consideration that the confidential informant will be receiving. |
| 128 | (b) Each person who is solicited to act as a confidential |
| 129 | informant must be given the opportunity to consult with legal |
| 130 | counsel before entering into a substantial assistance agreement. |
| 131 | If the person is not represented by legal counsel at the time of |
| 132 | the solicitation, the law enforcement agency must advise the |
| 133 | person of his or her right to consult with legal counsel before |
| 134 | entering into the substantial assistance agreement. |
| 135 | (c) An agent of a law enforcement agency may not promise, |
| 136 | agree, or suggest to a prospective confidential informant any |
| 137 | type of immunity from prosecution without the express authority |
| 138 | of the state attorney. The confidential informant shall be |
| 139 | provided a complete and legible copy of the executed and |
| 140 | approved substantial assistance agreement. The law enforcement |
| 141 | agency is the controlling agent with respect to such agreement, |
| 142 | and shall report to the state attorney upon the successful |
| 143 | conclusion of the agreement or the informant's inability or |
| 144 | unwillingness to fulfill the agreement. |
| 145 | (d) Each law enforcement agency that uses confidential |
| 146 | informants shall: |
| 147 | 1. Establish guidelines and protocols to prepare and |
| 148 | maintain a record of all contacts with confidential informants. |
| 149 | 2. Develop protocols governing the training of personnel |
| 150 | who deal with confidential informants and for implementing and |
| 151 | enforcing the requirements of this section. |
| 152 | (6) USING CONFIDENTIAL INFORMANTS.-- |
| 153 | (a) When using a confidential informant, the first |
| 154 | priority of a law enforcement agency is to preserve the safety |
| 155 | of the confidential informant, law enforcement personnel, the |
| 156 | target offender, and the public. All operational decisions and |
| 157 | actions must be based on this principle and law enforcement |
| 158 | personnel shall exercise the utmost care and judgment in order |
| 159 | to minimize the risk of harm to all persons involved. |
| 160 | (b) To effectuate this principle, a law enforcement agency |
| 161 | must determine whether the confidential informant has the |
| 162 | ability to safely perform the tasks required. In making this |
| 163 | determination, a law enforcement agency must consider, without |
| 164 | limitation: |
| 165 | 1. The age, maturity, emotional stability, and relevant |
| 166 | experience of the confidential informant; |
| 167 | 2. The criminal history of the confidential informant, |
| 168 | including the number and nature of any prior offenses; |
| 169 | 3. The consideration that is promised to the confidential |
| 170 | informant; |
| 171 | 4. The nature of assistance sought from the confidential |
| 172 | informant; |
| 173 | 5. The age and maturity of the target offender; |
| 174 | 6. The criminal history of the target offender, including |
| 175 | the number and nature of any prior offenses and the nature of |
| 176 | the target offense; and |
| 177 | 7. The propensity of the target offender for violence. |
| 178 | (c) If a person has no prior convictions for committing a |
| 179 | violent crime, that person may not be used as a confidential |
| 180 | informant in a law enforcement undercover operation involving a |
| 181 | target offender who is known or suspected to have engaged in |
| 182 | violence in the past or if the law enforcement agency has reason |
| 183 | to believe that the person may be exposed to harm. |
| 184 | Section 2. This act shall take effect July 1, 2009. |