Florida Senate - 2009 CS for SB 604 By the Committee on Criminal Justice; and Senators Fasano and Joyner 591-03001-09 2009604c1 1 A bill to be entitled 2 An act relating to confidential informants; creating 3 Rachael’s Law; defining terms; requiring a law 4 enforcement agency that uses confidential informants 5 to disclose certain information to persons who are 6 requested to serve as confidential informants; 7 providing that a law enforcement agency must provide a 8 person who is requested to serve as a confidential 9 informant the opportunity to consult with legal 10 counsel; requiring training for persons involved in 11 the recruitment and use of confidential informants; 12 requiring a law enforcement agency to adopt policies 13 and procedures to preserve the safety of confidential 14 informants, law enforcement personnel, target 15 offenders, and the public; requiring a law enforcement 16 agency that uses confidential informants to address 17 the recruitment, control, and use of confidential 18 informants in policies and procedures of the agency; 19 requiring a law enforcement agency to establish 20 policies and procedures to assess the suitability of 21 using a person as a confidential informant; requiring 22 a law enforcement agency to establish procedures to 23 maintain the security of records relating to 24 confidential informants; requiring a law enforcement 25 agency to periodically review its practices regarding 26 confidential informants; providing that the act does 27 not grant any right or entitlement to a confidential 28 informant or a person who is requested to be a 29 confidential informant; providing an effective date. 30 31 WHEREAS, by using confidential informants in law 32 enforcement undercover operations, law enforcement agencies can 33 improve efforts to reduce crime and remove dangerous criminals 34 from the community, and 35 WHEREAS, because most confidential informants are not 36 trained law enforcement personnel, a law enforcement agency that 37 elects to use a confidential informant must take special care to 38 evaluate the abilities of the confidential informant to perform 39 the required tasks of the undercover operation and must, at all 40 times, closely supervise the activities of the confidential 41 informant, and 42 WHEREAS, the participation of a confidential informant in a 43 law enforcement undercover operation may be detrimental and 44 dangerous to the informant and to others, and 45 WHEREAS, the Legislature intends for law enforcement 46 agencies to continue to use confidential informants subject to 47 policies and procedures that will ensure that such use is in a 48 fair and reasonably safe manner that reduces adverse risks, 49 including injury or death, to the confidential informant, law 50 enforcement personnel, and other persons, and 51 WHEREAS, there are currently no statewide mandatory and 52 uniform standards or guidelines that apply to the use of 53 confidential informants, and 54 WHEREAS, in March of 2009, the Florida Police Chiefs 55 Association, the Florida Sheriffs Association, the State Law 56 Enforcement and Chiefs Association, and the Department of Law 57 Enforcement voluntarily adopted “Guidelines To Be Used By 58 Florida State And Local Law Enforcement Agencies In Dealing With 59 Confidential Informants,” which provide minimum expectations for 60 agency policies for dealing with confidential informants, and 61 WHEREAS, if the minimum expectations contained in those 62 guidelines were to be required of every law enforcement agency 63 that uses confidential informants, the Legislature’s intent to 64 promote safer use of confidential informants in the state would 65 be substantially advanced, and 66 WHEREAS, the Legislature intends to codify the standards 67 set forth in the “Guidelines To Be Used By Florida State and 68 Local Law Enforcement Agencies In Dealing With Confidential 69 Informants,” and to require those standards to be followed by 70 all law enforcement agencies in this state which use 71 confidential informants, NOW, THEREFORE, 72 73 Be It Enacted by the Legislature of the State of Florida: 74 75 Section 1. Confidential informants.— 76 (1) This section may be cited as “Rachael’s Law.” 77 (2) As used in this section, the term: 78 (a) “Confidential informant” means a person who cooperates 79 with a law enforcement agency confidentially in order to protect 80 the person or the agency’s intelligence-gathering or 81 investigative efforts and: 82 1. Seeks to avoid arrest or prosecution for a crime, or 83 mitigate punishment for a crime in which a sentence will be or 84 has been imposed; and 85 2. Is able, by reason of his or her familiarity or close 86 association with suspected criminals, to: 87 a. Make a controlled buy or controlled sale of contraband, 88 controlled substances, or other items that are material to a 89 criminal investigation; 90 b. Supply regular or constant information about suspected 91 or actual criminal activities to a law enforcement agency; or 92 c. Otherwise provide information that is important to 93 ongoing criminal intelligence-gathering or criminal 94 investigative efforts. 95 (b) “Controlled buy” means the purchase of contraband, 96 controlled substances, or other items that are material to a 97 criminal investigation from a target offender which is 98 initiated, managed, overseen, or participated in by law 99 enforcement personnel with the knowledge of a confidential 100 informant. 101 (c) “Controlled sale” means the sale of contraband, 102 controlled substances, or other items that are material to a 103 criminal investigation to a target offender which is initiated, 104 managed, overseen, or participated in by law enforcement 105 personnel with the knowledge of a confidential informant. 106 (d) “Target offender” means the person suspected by law 107 enforcement personnel to be implicated in criminal acts by the 108 activities of a confidential informant. 109 (3) A law enforcement agency that uses confidential 110 informants shall: 111 (a) Inform each person who is requested to serve as a 112 confidential informant that the agency cannot promise 113 inducements such as a grant of immunity, dropped or reduced 114 charges, or reduced sentences or placement on probation in 115 exchange for serving as a confidential informant. 116 (b) Inform each person who is requested to serve as a 117 confidential informant that the value of his or her assistance 118 as a confidential informant and any effect that assistance may 119 have on pending criminal matters can be determined only by the 120 appropriate legal authority. 121 (c) Provide a person who is requested to serve as a 122 confidential informant with an opportunity to consult with legal 123 counsel upon request before the person agrees to perform any 124 activities as a confidential informant. However, this section 125 does not create a right to publicly funded legal counsel. 126 (d) Ensure that all personnel who are involved in the use 127 or recruitment of confidential informants are trained in the law 128 enforcement agency’s policies and procedures. The agency shall 129 keep documentation demonstrating the date of such training. 130 (e) Adopt policies and procedures that assign the highest 131 priority in operational decisions and actions to the 132 preservation of the safety of confidential informants, law 133 enforcement personnel, target offenders, and the public. 134 (4) A law enforcement agency that uses confidential 135 informants shall establish policies and procedures addressing 136 the recruitment, control, and use of confidential informants. 137 The policies and procedures must state the: 138 (a) Information that the law enforcement agency shall 139 maintain concerning each confidential informant; 140 (b) General guidelines for handling confidential 141 informants; 142 (c) Process to advise a confidential informant of 143 conditions, restrictions, and procedures associated with 144 participating in the agency’s investigative or intelligence 145 gathering activities; 146 (d) Designated supervisory or command-level review and 147 oversight in the use of a confidential informant; 148 (e) Limits or restrictions on off-duty association or 149 social relationships by agency personnel involved in 150 investigative or intelligence gathering with confidential 151 informants; 152 (f) Guidelines to deactivate confidential informants, 153 including guidelines for deactivating communications with 154 confidential informants; and 155 (g) Level of supervisory approval required before a 156 juvenile is used as a confidential informant. 157 (5) A law enforcement agency that uses confidential 158 informants shall establish policies and procedures to assess the 159 suitability of using a person as a confidential informant by 160 considering the minimum following factors: 161 (a) The person’s age and maturity; 162 (b) The risk the person poses to adversely affect a present 163 or potential investigation or prosecution; 164 (c) The effect upon agency efforts that the disclosure of 165 the person’s cooperation in the community may have; 166 (d) Whether the person is a substance abuser or has a 167 history of substance abuse or is in a court-supervised drug 168 treatment program; 169 (e) The risk of physical harm to the person, or to his or 170 her immediate family or close associates, as a result of 171 providing information or assistance or upon disclosure to the 172 community of the person’s assistance; 173 (f) Whether the person has shown any indication of 174 emotional instability, unreliability, or furnishing false 175 information; 176 (g) The person’s criminal history or prior criminal record; 177 and 178 (h) Whether the use of the person is important or vital to 179 the success of an investigation. 180 (6) A law enforcement agency that uses confidential 181 informants shall establish written security procedures that, at 182 a minimum: 183 (a) Provide for the secured retention of any records 184 related to the law enforcement agency’s confidential sources, 185 including access to files identifying the identity of 186 confidential sources; 187 (b) Limit availability to records relating to confidential 188 informants to those within the law enforcement agency or law 189 enforcement community having a need to know or review those 190 records, or to those whose access has been required by court 191 process or order; 192 (c) Require the notation of each person who accesses such 193 records and the date that the records are accessed; 194 (d) Provide for review and oversight by the law enforcement 195 agency to ensure that the security procedures are followed; and 196 (e) Define the process by which records concerning a 197 confidential informant may be lawfully destroyed. 198 (7) A state or local law enforcement agency that uses 199 confidential informants shall perform a periodic review of its 200 actual practices regarding confidential informants in order to 201 ensure conformity with the agency’s policies and procedures and 202 this section. 203 (8) The provisions of this section and policies and 204 procedures adopted pursuant to this section do not grant any 205 right or entitlement to a confidential informant or a person who 206 is requested to be a confidential informant. 207 Section 2. This act shall take effect July 1, 2009.