Florida Senate - 2009 COMMITTEE AMENDMENT
Bill No. SB 604
Barcode 957602
LEGISLATIVE ACTION
Senate . House
Comm: RCS .
03/18/2009 .
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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,