Florida Senate - 2009                       CS for CS for SB 604
       
       
       
       By the Committees on Judiciary; and Criminal Justice; and
       Senators Fasano and Joyner
       
       
       
       590-04426A-09                                          2009604c2
    1                        A bill to be entitled                      
    2         An act relating to confidential informants; creating
    3         Rachel’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 “Rachel’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)“Law enforcement agency” means an agency having a
  107  primary mission of preventing and detecting crime and the
  108  enforcement of the penal, criminal, traffic, or highway laws of
  109  the state and that in furtherance of that primary mission
  110  employs law enforcement officers as defined at s. 943.10.
  111         (e)“Target offender” means the person suspected by law
  112  enforcement personnel to be implicated in criminal acts by the
  113  activities of a confidential informant.
  114         (3)A law enforcement agency that uses confidential
  115  informants shall:
  116         (a)Inform each person who is requested to serve as a
  117  confidential informant that the agency cannot promise
  118  inducements such as a grant of immunity, dropped or reduced
  119  charges, or reduced sentences or placement on probation in
  120  exchange for serving as a confidential informant.
  121         (b)Inform each person who is requested to serve as a
  122  confidential informant that the value of his or her assistance
  123  as a confidential informant and any effect that assistance may
  124  have on pending criminal matters can be determined only by the
  125  appropriate legal authority.
  126         (c)Provide a person who is requested to serve as a
  127  confidential informant with an opportunity to consult with legal
  128  counsel upon request before the person agrees to perform any
  129  activities as a confidential informant. However, this section
  130  does not create a right to publicly funded legal counsel.
  131         (d)Ensure that all personnel who are involved in the use
  132  or recruitment of confidential informants are trained in the law
  133  enforcement agency’s policies and procedures. The agency shall
  134  keep documentation demonstrating the date of such training.
  135         (e)Adopt policies and procedures that assign the highest
  136  priority in operational decisions and actions to the
  137  preservation of the safety of confidential informants, law
  138  enforcement personnel, target offenders, and the public.
  139         (4)A law enforcement agency that uses confidential
  140  informants shall establish policies and procedures addressing
  141  the recruitment, control, and use of confidential informants.
  142  The policies and procedures must state the:
  143         (a)Information that the law enforcement agency shall
  144  maintain concerning each confidential informant;
  145         (b)General guidelines for handling confidential
  146  informants;
  147         (c)Process to advise a confidential informant of
  148  conditions, restrictions, and procedures associated with
  149  participating in the agency’s investigative or intelligence
  150  gathering activities;
  151         (d)Designated supervisory or command-level review and
  152  oversight in the use of a confidential informant;
  153         (e)Limits or restrictions on off-duty association or
  154  social relationships by agency personnel involved in
  155  investigative or intelligence gathering with confidential
  156  informants;
  157         (f)Guidelines to deactivate confidential informants,
  158  including guidelines for deactivating communications with
  159  confidential informants; and
  160         (g)Level of supervisory approval required before a
  161  juvenile is used as a confidential informant.
  162         (5)A law enforcement agency that uses confidential
  163  informants shall establish policies and procedures to assess the
  164  suitability of using a person as a confidential informant by
  165  considering the minimum following factors:
  166         (a)The person’s age and maturity;
  167         (b)The risk the person poses to adversely affect a present
  168  or potential investigation or prosecution;
  169         (c)The effect upon agency efforts that the disclosure of
  170  the person’s cooperation in the community may have;
  171         (d)Whether the person is a substance abuser or has a
  172  history of substance abuse or is in a court-supervised drug
  173  treatment program;
  174         (e)The risk of physical harm to the person, or to his or
  175  her immediate family or close associates, as a result of
  176  providing information or assistance or upon disclosure to the
  177  community of the person’s assistance;
  178         (f)Whether the person has shown any indication of
  179  emotional instability, unreliability, or furnishing false
  180  information;
  181         (g)The person’s criminal history or prior criminal record;
  182  and
  183         (h)Whether the use of the person is important or vital to
  184  the success of an investigation.
  185         (6)A law enforcement agency that uses confidential
  186  informants shall establish written security procedures that, at
  187  a minimum:
  188         (a)Provide for the secured retention of any records
  189  related to the law enforcement agency’s confidential sources,
  190  including access to files identifying the identity of
  191  confidential sources;
  192         (b)Limit availability to records relating to confidential
  193  informants to those within the law enforcement agency or law
  194  enforcement community having a need to know or review those
  195  records, or to those whose access has been required by court
  196  process or order;
  197         (c)Require the notation of each person who accesses such
  198  records and the date that the records are accessed;
  199         (d)Provide for review and oversight by the law enforcement
  200  agency to ensure that the security procedures are followed; and
  201         (e)Define the process by which records concerning a
  202  confidential informant may be lawfully destroyed.
  203         (7)A state or local law enforcement agency that uses
  204  confidential informants shall perform a periodic review of its
  205  actual practices regarding confidential informants in order to
  206  ensure conformity with the agency’s policies and procedures and
  207  this section.
  208         (8)The provisions of this section and policies and
  209  procedures adopted pursuant to this section do not grant any
  210  right or entitlement to a confidential informant or a person who
  211  is requested to be a confidential informant.
  212         Section 2. This act shall take effect July 1, 2009.