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,