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. |