CS/CS/HB 271

1	A bill to be entitled
2	An act relating to confidential informants; creating
3	"Rachel'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 that any failure to
28	abide by the act does not create any additional right
29	enforceable by a defendant in a criminal proceeding;
30	providing an effective date.
31
32	WHEREAS, by using confidential informants in law
33	enforcement undercover operations, law enforcement agencies can
34	improve efforts to reduce crime and remove dangerous criminals
35	from the community, and
36	WHEREAS, because most confidential informants are not
37	trained law enforcement personnel, a law enforcement agency that
38	elects to use a confidential informant must take special care to
39	evaluate the abilities of the confidential informant to perform
40	the required tasks of the undercover operation and must, at all
41	times, closely supervise the activities of the confidential
42	informant, and
43	WHEREAS, the participation of a confidential informant in a
44	law enforcement undercover operation may be detrimental and
45	dangerous to the informant and to others, and
46	WHEREAS, the Legislature intends for law enforcement
47	agencies to continue to use confidential informants subject to
48	policies and procedures that will ensure that such use is in a
49	fair and reasonably safe manner that reduces adverse risks,
50	including injury or death, to the confidential informant, law
51	enforcement personnel, and other persons, and
52	WHEREAS, there are currently no statewide mandatory and
53	uniform standards or guidelines that apply to the use of
54	confidential informants, and
55	WHEREAS, in March of 2009, the Florida Police Chiefs
56	Association, the Florida Sheriffs Association, the State Law
57	Enforcement and Chiefs Association, and the Florida Department
58	of Law Enforcement voluntarily adopted "Guidelines To Be Used By
59	Florida State And Local Law Enforcement Agencies In Dealing With
60	Confidential Informants," which provide minimum expectations for
61	agency policies for dealing with confidential informants, and
62	WHEREAS, if the minimum expectations contained in those
63	guidelines were to be required of every law enforcement agency
64	that uses confidential informants, the Legislature's intent to
65	promote safer use of confidential informants in the state would
66	be substantially advanced, and
67	WHEREAS, the Legislature intends to codify the standards
68	set forth in the "Guidelines To Be Used By Florida State And
69	Local Law Enforcement Agencies In Dealing With Confidential
70	Informants," and to require those standards to be followed by
71	all law enforcement agencies in this state which use
72	confidential informants, NOW, THEREFORE,
73
74	Be It Enacted by the Legislature of the State of Florida:
75
76	Section 1.  Confidential informants.--
77	(1)  This section may be cited as "Rachel's Law."
78	(2)  As used in this section, the term:
79	(a)  "Confidential informant" means a person who cooperates
80	with a law enforcement agency confidentially in order to protect
81	the person or the agency's intelligence gathering or
82	investigative efforts and:
83	1.  Seeks to avoid arrest or prosecution for a crime, or
84	mitigate punishment for a crime in which a sentence will be or
85	has been imposed; and
86	2.  Is able, by reason of his or her familiarity or close
87	association with suspected criminals, to:
88	a.  Make a controlled buy or controlled sale of contraband,
89	controlled substances, or other items that are material to a
90	criminal investigation;
91	b.  Supply regular or constant information about suspected
92	or actual criminal activities to a law enforcement agency; or
93	c.  Otherwise provide information important to ongoing
94	criminal intelligence gathering or criminal investigative
95	efforts.
96	(b)  "Controlled buy" means the purchase of contraband,
97	controlled substances, or other items that are material to a
98	criminal investigation from a target offender which is
99	initiated, managed, overseen, or participated in by law
100	enforcement personnel with the knowledge of a confidential
101	informant.
102	(c)  "Controlled sale" means the sale of contraband,
103	controlled substances, or other items that are material to a
104	criminal investigation to a target offender which is initiated,
105	managed, overseen, or participated in by law enforcement
106	personnel with the knowledge of a confidential informant.
107	(d)  "Law enforcement agency" means an agency having a
108	primary mission of preventing and detecting crime and the
109	enforcement of the penal, criminal, traffic, or highway laws of
110	the state and that in furtherance of that primary mission
111	employs law enforcement officers as defined in s. 943.10.
112	(e)  "Target offender" means the person suspected by law
113	enforcement personnel to be implicated in criminal acts by the
114	activities of a confidential informant.
115	(3)  A law enforcement agency that uses confidential
116	informants shall:
117	(a)  Inform each person who is requested to serve as a
118	confidential informant that the agency cannot promise
119	inducements such as a grant of immunity, dropped or reduced
120	charges, or reduced sentences or placement on probation in
121	exchange for serving as a confidential informant.
122	(b)  Inform each person who is requested to serve as a
123	confidential informant that the value of his or her assistance
124	as a confidential informant and any effect that assistance may
125	have on pending criminal matters can be determined only by the
126	appropriate legal authority.
127	(c)  Provide a person who is requested to serve as a
128	confidential informant with an opportunity to consult with legal
129	counsel upon request before the person agrees to perform any
130	activities as a confidential informant. However, this section
131	does not create a right to publicly funded legal counsel.
132	(d)  Ensure that all personnel who are involved in the use
133	or recruitment of confidential informants are trained in the law
134	enforcement agency's policies and procedures. The agency shall
135	keep documentation demonstrating the date of such training.
136	(e)  Adopt policies and procedures that assign the highest
137	priority in operational decisions and actions to the
138	preservation of the safety of confidential informants, law
139	enforcement personnel, target offenders, and the public.
140	(4)  A law enforcement agency that uses confidential
141	informants shall establish policies and procedures addressing
142	the recruitment, control, and use of confidential informants.
143	The policies and procedures must state the:
144	(a)  Information that the law enforcement agency shall
145	maintain concerning each confidential informant;
146	(b)  General guidelines for handling confidential
147	informants;
148	(c)  Process to advise a confidential informant of
149	conditions, restrictions, and procedures associated with
150	participating in the agency's investigative or intelligence
151	gathering activities;
152	(d)  Designated supervisory or command-level review and
153	oversight in the use of a confidential informant;
154	(e)  Limits or restrictions on off-duty association or
155	social relationships by agency personnel involved in
156	investigative or intelligence gathering with confidential
157	informants;
158	(f)  Guidelines to deactivate confidential informants,
159	including guidelines for deactivating communications with
160	confidential informants; and
161	(g)  Level of supervisory approval required before a
162	juvenile is used as a confidential informant.
163	(5)  A law enforcement agency that uses confidential
164	informants shall establish policies and procedures to assess the
165	suitability of using a person as a confidential informant by
166	considering the minimum following factors:
167	(a)  The person's age and maturity;
168	(b)  The risk the person poses to adversely affect a
169	present or potential investigation or prosecution;
170	(c)  The effect upon agency efforts that the disclosure of
171	the person's cooperation in the community may have;
172	(d)  Whether the person is a substance abuser or has a
173	history of substance abuse or is in a court-supervised drug
174	treatment program;
175	(e)  The risk of physical harm to the person, his or her
176	immediate family, or close associates as a result of providing
177	information or assistance, or upon the disclosure of the
178	person's assistance to the community;
179	(f)  Whether the person has shown any indication of
180	emotional instability, unreliability, or of furnishing false
181	information;
182	(g)  The person's criminal history or prior criminal
183	record; and
184	(h)  Whether the use of the person is important to or vital
185	to the success of an investigation.
186	(6)  A law enforcement agency that uses confidential
187	informants shall establish written security procedures that, at
188	a minimum:
189	(a)  Provide for the secured retention of any records
190	related to the law enforcement agency's confidential sources,
191	including access to files identifying the identity of
192	confidential sources;
193	(b)  Limit availability to records relating to confidential
194	informants to those within the law enforcement agency or law
195	enforcement community having a need to know or review those
196	records, or to those whose access has been required by court
197	process or order;
198	(c)  Require notation of each person who accesses such
199	records and the date that the records are accessed;
200	(d)  Provide for review and oversight by the law
201	enforcement agency to ensure that the security procedures are
202	followed; and
203	(e)  Define the process by which records concerning a
204	confidential informant may be lawfully destroyed.
205	(7)  A state or local law enforcement agency that uses
206	confidential informants shall perform a periodic review of
207	actual agency confidential informant practices to ensure
208	conformity with the agency's policies and procedures and this
209	section.
210	(8)  The provisions of this section and policies and
211	procedures adopted pursuant to this section do not grant any
212	right or entitlement to a confidential informant or a person who
213	is requested to be a confidential informant, and any failure to
214	abide by this section may not be relied upon to create any
215	additional right, substantive or procedural, enforceable at law
216	by a defendant in a criminal proceeding.
217	Section 2.  This act shall take effect July 1, 2009.

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