HB 271

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


CODING: Words stricken are deletions; words underlined are additions.