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.