Florida Senate - 2009 COMMITTEE AMENDMENT Bill No. SB 604 Barcode 957602 LEGISLATIVE ACTION Senate . House Comm: RCS . 03/18/2009 . . . . ————————————————————————————————————————————————————————————————— ————————————————————————————————————————————————————————————————— The Committee on Criminal Justice (Dean) recommended the following: 1 Senate Amendment (with title amendment) 2 3 4 Delete everything after the enacting clause 5 and insert: 6 Section 1. Confidential informants.— 7 (1) This section may be cited as “Rachael’s Law.” 8 (2) As used in this section, the term: 9 (a) “Confidential informant” means a person who cooperates 10 with a law enforcement agency confidentially in order to protect 11 the person or the agency’s intelligence-gathering or 12 investigative efforts and: 13 1. Seeks to avoid arrest or prosecution for a crime, or 14 mitigate punishment for a crime in which a sentence will be or 15 has been imposed; or 16 2. Is able, by reason of his or her familiarity or close 17 association with suspected criminals, to: 18 a. Make a controlled buy or controlled sale of contraband, 19 controlled substances, or other items that are material to a 20 criminal investigation; 21 b. Supply regular or constant information about suspected 22 or actual criminal activities to a law enforcement agency; or 23 c. Otherwise provide information important to ongoing 24 criminal intelligence-gathering or criminal investigative 25 efforts. 26 (b) “Controlled buy” means the purchase of contraband, 27 controlled substances, or other items that are material to a 28 criminal investigation from a target offender which is 29 initiated, managed, overseen, or participated in by law 30 enforcement personnel with the knowledge of a confidential 31 informant. 32 (c) “Controlled sale” means the sale of contraband, 33 controlled substances, or other items that are material to a 34 criminal investigation to a target offender which is initiated, 35 managed, overseen, or participated in by law enforcement 36 personnel with the knowledge of a confidential informant. 37 (d) “Target offender” means the person suspected by law 38 enforcement personnel to be implicated in criminal acts by the 39 activities of a confidential informant. 40 (3) A law enforcement agency that uses confidential 41 informants shall: 42 (a) Inform each person who is requested to serve as a 43 confidential informant that the agency cannot promise 44 inducements such as a grant of immunity, dropped or reduced 45 charges, or reduced sentences or placement on probation in 46 exchange for serving as a confidential informant. 47 (b) Inform each person who is requested to serve as a 48 confidential informant that the value of his or her assistance 49 as a confidential informant and any effect that assistance may 50 have on pending criminal matters can be determined only by the 51 appropriate legal authority. 52 (c) Provide a person who is requested to serve as a 53 confidential informant with an opportunity to consult with legal 54 counsel upon request before the person agrees to perform any 55 activities as a confidential informant. However, this section 56 does not create a right to publicly funded legal counsel. 57 (d) Ensure that all personnel who are involved in the use 58 or recruitment of confidential informants are trained in the law 59 enforcement agency’s policies and procedures. The agency shall 60 keep documentation demonstrating the date of such training. 61 (e) Adopt policies and procedures that assign the highest 62 priority in operational decisions and actions to the 63 preservation of the safety of confidential informants, law 64 enforcement personnel, target offenders, and the public. 65 (4) A law enforcement agency that uses confidential 66 informants shall establish policies and procedures addressing 67 the recruitment, control, and use of confidential informants. 68 The policies and procedures must state the: 69 (a) Information that the law enforcement agency shall 70 maintain concerning each confidential informant; 71 (b) General guidelines for handling confidential 72 informants; 73 (c) Process to advise a confidential informant of 74 conditions, restrictions, and procedures associated with 75 participating in the agency’s investigative or intelligence 76 gathering activities; 77 (d) Designated supervisory or command-level review and 78 oversight in the use of a confidential informant; 79 (e) Limits or restrictions on off-duty association or 80 social relationships by agency personnel involved in 81 investigative or intelligence gathering with confidential 82 informants; 83 (f) Guidelines to deactivate confidential informants, 84 including guidelines for deactivating communications with 85 confidential informants; and 86 (g) Level of supervisory approval required before a 87 juvenile is used as a confidential informant. 88 (5) A law enforcement agency that uses confidential 89 informants shall establish policies and procedures to assess the 90 suitability of using a person as a confidential informant by 91 considering the minimum following factors: 92 (a) The person’s age and maturity; 93 (b) The risk the person poses to adversely affect a present 94 or potential investigation or prosecution; 95 (c) The effect upon agency efforts that the disclosure of 96 the person’s cooperation in the community may have; 97 (d) Whether the person is a substance abuser or has a 98 history of substance abuse or is in a court-supervised drug 99 treatment program; 100 (e) The risk of physical harm to the person, his or her 101 immediate family, or close associates as a result of providing 102 information or assistance, or upon the disclosure of the 103 person’s assistance to the community; 104 (f) Whether the person has shown any indication of 105 emotional instability, unreliability, or of furnishing false 106 information; 107 (g) The person’s criminal history or prior criminal record; 108 and 109 (h) Whether the use of the person is important to or vital 110 to the success of an investigation. 111 (6) A law enforcement agency that uses confidential 112 informants shall establish written security procedures that, at 113 a minimum: 114 (a) Provide for the secured retention of any records 115 related to the law enforcement agency’s confidential sources, 116 including access to files identifying the identity of 117 confidential sources; 118 (b) Limit availability to records relating to confidential 119 informants to those within the law enforcement agency or law 120 enforcement community having a need to know or review those 121 records, or to those whose access has been required by court 122 process or order; 123 (c) Require notation of each person who accesses such 124 records and the date that the records are accessed; 125 (d) Provide for review and oversight by the law enforcement 126 agency to ensure that the security procedures are followed; and 127 (e) Define the process by which records concerning a 128 confidential informant may be lawfully destroyed. 129 (7) A state or local law enforcement agency that uses 130 confidential informants shall perform a periodic review of 131 actual agency confidential informant practices to ensure 132 conformity with the agency’s policies and procedures and this 133 section. 134 (8) The provisions of this section and policies and 135 procedures adopted pursuant to this section do not grant any 136 right or entitlement to a confidential informant or a person who 137 is requested to be a confidential informant. 138 Section 2. This act shall take effect July 1, 2009. 139 140 ================= T I T L E A M E N D M E N T ================ 141 And the title is amended as follows: 142 Delete everything before the enacting clause 143 and insert: 144 A bill to be entitled 145 An act relating to confidential informants; creating Rachael’s 146 Law; defining terms; requiring a law enforcement agency that 147 uses confidential informants to disclose certain information to 148 persons who are requested to serve as confidential informants; 149 providing that a law enforcement agency must provide an 150 opportunity to consult with legal counsel to a person who is 151 requested to serve as a confidential informant; requiring 152 training for persons involved with the recruitment and use of 153 confidential informants; requiring a law enforcement agency to 154 adopt policies and procedures to preserve the safety of 155 confidential informants, law enforcement personnel, target 156 offenders, and the public; requiring a law enforcement agency 157 that uses confidential informants to address the recruitment, 158 control, and use of confidential informants in policies and 159 procedures of the agency; requiring a law enforcement agency to 160 establish policies and procedures to assess the suitability of 161 using a person as a confidential informant; requiring a law 162 enforcement agency to establish procedures to maintain the 163 security of records relating to confidential informants; 164 requiring a law enforcement agency to periodically review 165 confidential informant practices; providing that the act does 166 not grant any right or entitlement to a confidential informant 167 or a person who is requested to be a confidential informant; 168 providing an effective date. 169 170 WHEREAS, by using confidential informants in law 171 enforcement undercover operations, law enforcement agencies can 172 improve efforts to reduce crime and remove dangerous criminals 173 from the community, and 174 WHEREAS, because most confidential informants are not 175 trained law enforcement personnel, a law enforcement agency that 176 elects to use a confidential informant must take special care to 177 evaluate the abilities of the confidential informant to perform 178 the required tasks of the undercover operation and must, at all 179 times, closely supervise the activities of the confidential 180 informant, and 181 WHEREAS, the participation of a confidential informant in a 182 law enforcement undercover operation may be detrimental and 183 dangerous to the informant and to others, and 184 WHEREAS, the Legislature intends for law enforcement 185 agencies to continue to use confidential informants subject to 186 policies and procedures that will ensure that such use is in a 187 fair and reasonably safe manner that reduces adverse risks, 188 including injury or death, to the confidential informant, law 189 enforcement personnel, and other persons, and 190 WHEREAS, there are currently no statewide mandatory and 191 uniform standards or guidelines that apply to the use of 192 confidential informants, and 193 WHEREAS, in March of 2009, the Florida Police Chiefs 194 Association, the Florida Sheriffs Association, the State Law 195 Enforcement and Chiefs Association, and the Florida Department 196 of Law Enforcement voluntarily adopted “Guidelines To Be Used By 197 Florida State And Local Law Enforcement Agencies In Dealing With 198 Confidential Informants,” which provide minimum expectations for 199 agency policies for dealing with confidential informants, and 200 WHEREAS, if the minimum expectations contained in those 201 guidelines were to be required of every law enforcement agency 202 that uses confidential informants, the Legislature’s intent to 203 promote safer use of confidential informants in the state would 204 be substantially advanced, and 205 WHEREAS, the Legislature intends to codify the standards 206 set forth in the “Guidelines To Be Used By Florida State and 207 Local Law Enforcement Agencies In Dealing With Confidential 208 Informants,” and to require those standards to be followed by 209 all law enforcement agencies in this state which use 210 confidential informants, NOW, THEREFORE,