Florida Senate - 2009 SB 604 By Senator Fasano 11-00444A-09 2009604__ 1 A bill to be entitled 2 An act relating to confidential informants; providing 3 a short title; providing legislative intent; defining 4 terms; prohibiting a law enforcement agency from 5 selecting certain specified persons to act as 6 confidential informants; providing exceptions; 7 requiring that any agreement between a law enforcement 8 agency and a confidential informant be reduced to 9 writing and signed by certain designated parties; 10 requiring a law enforcement agency to notify the 11 confidential informant of his or her right to legal 12 counsel before executing an assistance agreement; 13 requiring recordkeeping; providing requirements for 14 the proper use of confidential informants; providing 15 an effective date. 16 17 Be It Enacted by the Legislature of the State of Florida: 18 19 Section 1. Confidential informants.— 20 (1) SHORT TITLE.—This section may be cited as “Rachel’s 21 Law.” 22 (2) LEGISLATIVE INTENT.— 23 (a) The Legislature recognizes that by using confidential 24 informants in law enforcement undercover operations, law 25 enforcement agencies can improve efforts to reduce crime and 26 remove dangerous criminals from the community. However, because 27 many confidential informants are not trained law enforcement 28 personnel, the Legislature believes that if a law enforcement 29 agency elects to use a confidential informant, the agency must 30 take special care when evaluating the abilities of the 31 confidential informant to perform the required tasks of the 32 undercover operation and must, at all times, closely supervise 33 the activities of the confidential informant. The Legislature 34 further recognizes that a confidential informant’s participation 35 in a law enforcement undercover operation may be detrimental and 36 dangerous to the informant and to others. Therefore, it is the 37 intent of the Legislature to allow law enforcement agencies to 38 use confidential informants, but to do so in a fair and 39 reasonably safe manner in order to reduce adverse risks, 40 including injury or death, to the confidential informant, law 41 enforcement personnel, the target offender, and the public. 42 (b) The Legislature also finds that there are no statewide, 43 uniform standards or guidelines applicable when using 44 confidential informants. Therefore, it is the intent of the 45 Legislature that the minimum standards set forth in this section 46 be followed by all law enforcement agencies in this state when 47 using confidential informants. 48 (3) DEFINITIONS.—As used in this section, the term: 49 (a) “Confidential informant” means a person who is not 50 employed by a law enforcement agency and who, in exchange for 51 consideration, supplies information about potential criminal 52 activity to law enforcement personnel or participates in a law 53 enforcement undercover operation. 54 (b) “Consideration” means anything of value, including, but 55 not limited to, monetary payment; leniency considerations 56 concerning any criminal activity, charge, or potential charge; 57 or a recommendation from a law enforcement agency for a 58 reduction of a criminal charge or sentence. 59 (c) “Controlled buy” means the purchase of stolen goods, 60 controlled substances, or the like from a target offender which 61 is initiated, managed, overseen, or participated in by law 62 enforcement personnel with the knowledge of the confidential 63 informant. 64 (d) “Law enforcement undercover operation” means an 65 investigative technique in which a law enforcement agency uses a 66 confidential informant to: 67 1. Assume a covert identity or purpose in order for the 68 confidential informant to take action to acquire evidence or 69 information that would likely be unavailable but for the target 70 offender’s reliance on the confidential informant’s covert role; 71 or 72 2. Participate in a controlled buy from a target offender 73 who is under investigation. 74 (e) “Substantial assistance agreement” means a written 75 contract between a law enforcement agency and a confidential 76 informant who has been charged with or convicted of a crime, or 77 who may be charged with a crime, which provides that the state 78 attorney may move the sentencing court to reduce or suspend the 79 sentence of the confidential informant or reduce or dismiss 80 charges if the confidential informant provides assistance to the 81 law enforcement agency or state attorney by assisting in the 82 identification, arrest, or conviction of a codefendant, 83 accessory, coconspirator, principal, or any other person 84 believed to be engaged in a violation of state law. 85 (f) “Target offender” means the person whom a law 86 enforcement agency suspects will be implicated by the activities 87 of a confidential informant. 88 (4) SELECTING CONFIDENTIAL INFORMANTS RECEIVING SUBSTANCE 89 ABUSE TREATMENT OR ON PAROLE OR PROBATION.—Except as provided in 90 this subsection and paragraph (6)(c), a law enforcement agency 91 may select any qualified person to act as a confidential 92 informant. A law enforcement agency may not use a person as a 93 confidential informant in a law enforcement undercover operation 94 if that person is: 95 (a) Currently participating in a court-ordered drug or 96 substance abuse treatment program unless the law enforcement 97 agency receives express approval from the circuit judge 98 supervising the drug court. When determining whether the person 99 may be used as a confidential informant, the judge shall 100 consider whether the person’s participation as a confidential 101 informant may jeopardize the success of his or her treatment 102 program. 103 (b) Voluntarily enrolled in a drug or substance abuse 104 treatment program unless the law enforcement agency receives the 105 express approval from the state attorney of the circuit in which 106 the law enforcement agency is located. Before approving this 107 person’s participation as a confidential informant, the state 108 attorney shall consult with the person’s treatment provider and 109 reasonably determine whether the person’s participation as a 110 confidential informant may jeopardize the success of his or her 111 treatment program. 112 (c) Currently on parole or probation unless the law 113 enforcement agency receives the express approval from the state 114 attorney in the circuit in which the law enforcement agency is 115 located and the approval of the parole or probation officer 116 supervising the parolee or probationer. 117 (5) SUBSTANTIAL ASSISTANCE AGREEMENTS; RIGHT TO LEGAL 118 COUNSEL; RECORDKEEPING AND WRITTEN PROTOCOLS.— 119 (a) Before a proposed confidential informant provides any 120 assistance to a law enforcement agency, all plea negotiations 121 and consideration offered to the proposed confidential informant 122 must be reduced to a written substantial assistance agreement 123 that is executed by the law enforcement agency and the 124 confidential informant and approved by the state attorney 125 prosecuting the case. The substantial assistance agreement must 126 include a description of the work that the confidential 127 informant will be doing, the length of service, and the 128 consideration that the confidential informant will be receiving. 129 (b) Each person who is solicited to act as a confidential 130 informant must be given the opportunity to consult with legal 131 counsel before entering into a substantial assistance agreement. 132 If the person is not represented by legal counsel at the time of 133 the solicitation, the law enforcement agency must advise the 134 person of his or her right to consult with legal counsel before 135 entering into the substantial assistance agreement. 136 (c) An agent of a law enforcement agency may not promise, 137 agree, or suggest to a prospective confidential informant any 138 type of immunity from prosecution without the express authority 139 of the state attorney. The confidential informant shall be 140 provided a complete and legible copy of the executed and 141 approved substantial assistance agreement. The law enforcement 142 agency is the controlling agent with respect to such agreement, 143 and shall report to the state attorney upon the successful 144 conclusion of the agreement or the informant's inability or 145 unwillingness to fulfill the agreement. 146 (d) Each law enforcement agency that uses confidential 147 informants shall: 148 1. Establish guidelines and protocols to prepare and 149 maintain a record of all contacts with confidential informants. 150 2. Develop protocols governing the training of personnel 151 who deal with confidential informants and for implementing and 152 enforcing the requirements of this section. 153 (6) USING CONFIDENTIAL INFORMANTS.— 154 (a) When using a confidential informant, the first priority 155 of a law enforcement agency is to preserve the safety of the 156 confidential informant, law enforcement personnel, the target 157 offender, and the public. All operational decisions and actions 158 must be based on this principle and law enforcement personnel 159 shall exercise the utmost care and judgment in order to minimize 160 the risk of harm to all persons involved. 161 (b) To effectuate this principle, a law enforcement agency 162 must determine whether the confidential informant has the 163 ability to safely perform the tasks required. In making this 164 determination, a law enforcement agency must consider, without 165 limitation: 166 1. The age, maturity, emotional stability, and relevant 167 experience of the confidential informant; 168 2. The criminal history of the confidential informant, 169 including the number and nature of any prior offenses; 170 3. The consideration that is promised to the confidential 171 informant; 172 4. The nature of assistance sought from the confidential 173 informant; 174 5. The age and maturity of the target offender; 175 6. The criminal history of the target offender, including 176 the number and nature of any prior offenses and the nature of 177 the target offense; and 178 7. The propensity of the target offender for violence. 179 (c) If a person has no prior convictions for committing a 180 violent crime, that person may not be used as a confidential 181 informant in a law enforcement undercover operation involving a 182 target offender who is known or suspected to have engaged in 183 violence in the past or if the law enforcement agency has reason 184 to believe that the person may be exposed to harm. 185 Section 2. This act shall take effect July 1, 2009.