CS/HB 271

1	A bill to be entitled
2	An act relating to confidential informants; creating
3	"Rachael's Law"; defining terms; requiring a law
4	enforcement agency that uses confidential informants to
5	disclose certain information to persons who are requested
6	to serve as confidential informants; providing that a law
7	enforcement agency must provide an opportunity to consult
8	with legal counsel to a person who is requested to serve
9	as a confidential informant; requiring training for
10	persons involved with the recruitment and use of
11	confidential informants; requiring a law enforcement
12	agency to adopt policies and procedures to preserve the
13	safety of confidential informants, law enforcement
14	personnel, target offenders, and the public; requiring a
15	law enforcement agency that uses confidential informants
16	to address the recruitment, control, and use of
17	confidential informants in policies and procedures of the
18	agency; requiring a law enforcement agency to establish
19	policies and procedures to assess the suitability of using
20	a person as a confidential informant; requiring a law
21	enforcement agency to establish procedures to maintain the
22	security of records relating to confidential informants;
23	requiring a law enforcement agency to periodically review
24	confidential informant practices; providing that the act
25	does not grant any right or entitlement to a confidential
26	informant or a person who is requested to be a
27	confidential informant; providing an effective date.
28
29	WHEREAS, by using confidential informants in law
30	enforcement undercover operations, law enforcement agencies can
31	improve efforts to reduce crime and remove dangerous criminals
32	from the community, and
33	WHEREAS, because most confidential informants are not
34	trained law enforcement personnel, a law enforcement agency that
35	elects to use a confidential informant must take special care to
36	evaluate the abilities of the confidential informant to perform
37	the required tasks of the undercover operation and must, at all
38	times, closely supervise the activities of the confidential
39	informant, and
40	WHEREAS, the participation of a confidential informant in a
41	law enforcement undercover operation may be detrimental and
42	dangerous to the informant and to others, and
43	WHEREAS, the Legislature intends for law enforcement
44	agencies to continue to use confidential informants subject to
45	policies and procedures that will ensure that such use is in a
46	fair and reasonably safe manner that reduces adverse risks,
47	including injury or death, to the confidential informant, law
48	enforcement personnel, and other persons, and
49	WHEREAS, there are currently no statewide mandatory and
50	uniform standards or guidelines that apply to the use of
51	confidential informants, and
52	WHEREAS, in March of 2009, the Florida Police Chiefs
53	Association, the Florida Sheriffs Association, the State Law
54	Enforcement and Chiefs Association, and the Florida Department
55	of Law Enforcement voluntarily adopted "Guidelines To Be Used By
56	Florida State And Local Law Enforcement Agencies In Dealing With
57	Confidential Informants," which provide minimum expectations for
58	agency policies for dealing with confidential informants, and
59	WHEREAS, if the minimum expectations contained in those
60	guidelines were to be required of every law enforcement agency
61	that uses confidential informants, the Legislature's intent to
62	promote safer use of confidential informants in the state would
63	be substantially advanced, and
64	WHEREAS, the Legislature intends to codify the standards
65	set forth in the "Guidelines To Be Used By Florida State And
66	Local Law Enforcement Agencies In Dealing With Confidential
67	Informants," and to require those standards to be followed by
68	all law enforcement agencies in this state which use
69	confidential informants, NOW, THEREFORE,
70
71	Be It Enacted by the Legislature of the State of Florida:
72
73	Section 1.  Confidential informants.--
74	(1)  This section may be cited as "Rachael's Law."
75	(2)  As used in this section, the term:
76	(a)  "Confidential informant" means a person who cooperates
77	with a law enforcement agency confidentially in order to protect
78	the person or the agency's intelligence gathering or
79	investigative efforts and:
80	1.  Seeks to avoid arrest or prosecution for a crime, or
81	mitigate punishment for a crime in which a sentence will be or
82	has been imposed; and
83	2.  Is able, by reason of his or her familiarity or close
84	association with suspected criminals, to:
85	a.  Make a controlled buy or controlled sale of contraband,
86	controlled substances, or other items that are material to a
87	criminal investigation;
88	b.  Supply regular or constant information about suspected
89	or actual criminal activities to a law enforcement agency; or
90	c.  Otherwise provide information important to ongoing
91	criminal intelligence gathering or criminal investigative
92	efforts.
93	(b)  "Controlled buy" means the purchase of contraband,
94	controlled substances, or other items that are material to a
95	criminal investigation from a target offender which is
96	initiated, managed, overseen, or participated in by law
97	enforcement personnel with the knowledge of a confidential
98	informant.
99	(c)  "Controlled sale" means the sale of contraband,
100	controlled substances, or other items that are material to a
101	criminal investigation to a target offender which is initiated,
102	managed, overseen, or participated in by law enforcement
103	personnel with the knowledge of a confidential informant.
104	(d)  "Target offender" means the person suspected by law
105	enforcement personnel to be implicated in criminal acts by the
106	activities of a confidential informant.
107	(3)  A law enforcement agency that uses confidential
108	informants shall:
109	(a)  Inform each person who is requested to serve as a
110	confidential informant that the agency cannot promise
111	inducements such as a grant of immunity, dropped or reduced
112	charges, or reduced sentences or placement on probation in
113	exchange for serving as a confidential informant.
114	(b)  Inform each person who is requested to serve as a
115	confidential informant that the value of his or her assistance
116	as a confidential informant and any effect that assistance may
117	have on pending criminal matters can be determined only by the
118	appropriate legal authority.
119	(c)  Provide a person who is requested to serve as a
120	confidential informant with an opportunity to consult with legal
121	counsel upon request before the person agrees to perform any
122	activities as a confidential informant. However, this section
123	does not create a right to publicly funded legal counsel.
124	(d)  Ensure that all personnel who are involved in the use
125	or recruitment of confidential informants are trained in the law
126	enforcement agency's policies and procedures. The agency shall
127	keep documentation demonstrating the date of such training.
128	(e)  Adopt policies and procedures that assign the highest
129	priority in operational decisions and actions to the
130	preservation of the safety of confidential informants, law
131	enforcement personnel, target offenders, and the public.
132	(4)  A law enforcement agency that uses confidential
133	informants shall establish policies and procedures addressing
134	the recruitment, control, and use of confidential informants.
135	The policies and procedures must state the:
136	(a)  Information that the law enforcement agency shall
137	maintain concerning each confidential informant;
138	(b)  General guidelines for handling confidential
139	informants;
140	(c)  Process to advise a confidential informant of
141	conditions, restrictions, and procedures associated with
142	participating in the agency's investigative or intelligence
143	gathering activities;
144	(d)  Designated supervisory or command-level review and
145	oversight in the use of a confidential informant;
146	(e)  Limits or restrictions on off-duty association or
147	social relationships by agency personnel involved in
148	investigative or intelligence gathering with confidential
149	informants;
150	(f)  Guidelines to deactivate confidential informants,
151	including guidelines for deactivating communications with
152	confidential informants; and
153	(g)  Level of supervisory approval required before a
154	juvenile is used as a confidential informant.
155	(5)  A law enforcement agency that uses confidential
156	informants shall establish policies and procedures to assess the
157	suitability of using a person as a confidential informant by
158	considering the minimum following factors:
159	(a)  The person's age and maturity;
160	(b)  The risk the person poses to adversely affect a
161	present or potential investigation or prosecution;
162	(c)  The effect upon agency efforts that the disclosure of
163	the person's cooperation in the community may have;
164	(d)  Whether the person is a substance abuser or has a
165	history of substance abuse or is in a court-supervised drug
166	treatment program;
167	(e)  The risk of physical harm to the person, his or her
168	immediate family, or close associates as a result of providing
169	information or assistance, or upon the disclosure of the
170	person's assistance to the community;
171	(f)  Whether the person has shown any indication of
172	emotional instability, unreliability, or of furnishing false
173	information;
174	(g)  The person's criminal history or prior criminal
175	record; and
176	(h)  Whether the use of the person is important to or vital
177	to the success of an investigation.
178	(6)  A law enforcement agency that uses confidential
179	informants shall establish written security procedures that, at
180	a minimum:
181	(a)  Provide for the secured retention of any records
182	related to the law enforcement agency's confidential sources,
183	including access to files identifying the identity of
184	confidential sources;
185	(b)  Limit availability to records relating to confidential
186	informants to those within the law enforcement agency or law
187	enforcement community having a need to know or review those
188	records, or to those whose access has been required by court
189	process or order;
190	(c)  Require notation of each person who accesses such
191	records and the date that the records are accessed;
192	(d)  Provide for review and oversight by the law
193	enforcement agency to ensure that the security procedures are
194	followed; and
195	(e)  Define the process by which records concerning a
196	confidential informant may be lawfully destroyed.
197	(7)  A state or local law enforcement agency that uses
198	confidential informants shall perform a periodic review of
199	actual agency confidential informant practices to ensure
200	conformity with the agency's policies and procedures and this
201	section.
202	(8)  The provisions of this section and policies and
203	procedures adopted pursuant to this section do not grant any
204	right or entitlement to a confidential informant or a person who
205	is requested to be a confidential informant.
206	Section 2.  This act shall take effect July 1, 2009.

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