Florida Senate - 2016 SB 1334
By Senator Dean
5-00195-16 20161334__
1 A bill to be entitled
2 An act relating to confidential informants; amending
3 s. 914.28, F.S.; requiring a law enforcement agency
4 that uses confidential informants to adopt policies
5 and procedures providing reasonable protective
6 measures; requiring such agencies to provide certain
7 prospective and current confidential informants with
8 information on substance abuse treatment options that
9 may be available; requiring that the policies and
10 procedures adopted by a law enforcement agency provide
11 general guidelines for the management and safety of
12 confidential informants and training requirements for
13 certain agency personnel; revising factors used in
14 assessing a person’s suitability as a confidential
15 informant; requiring a law enforcement agency that
16 solicits a person to act as a confidential informant
17 to inform such person of his or her right to consult
18 with legal counsel before signing a Substantial
19 Assistance Agreement; authorizing such agencies to
20 advise prospective confidential informants that they
21 may waive that right; prohibiting a person under 18
22 years of age from participating in certain activities
23 without written parental or guardian consent; allowing
24 such person to provide confidential information to a
25 law enforcement agency; prohibiting a person who is
26 receiving certain substance abuse treatment from
27 participating in certain activities; allowing such
28 person to provide confidential information to a law
29 enforcement agency; prohibiting a person who is under
30 the jurisdiction of a drug court program from
31 participating in certain activities without the
32 consent of the state attorney assigned to the drug
33 court program; requiring a law enforcement agency to
34 report to the state attorney a drug court participant
35 who the agency believes has violated any drug court
36 rule; requiring a law enforcement agency to annually
37 collect and submit confidential informant data to the
38 Department of Law Enforcement; prohibiting such data
39 from disclosing certain information; specifying
40 information required to be submitted to the
41 department; requiring the department to publicly
42 release such data by a specified date; providing
43 penalties; providing an effective date.
44
45 Be It Enacted by the Legislature of the State of Florida:
46
47 Section 1. Paragraphs (f) and (g) are added to subsection
48 (3) of section 914.28, Florida Statutes, subsections (4), (5),
49 and (7) of that section are amended, present subsection (8) of
50 that section is redesignated as subsection (12) and amended, and
51 new subsections (8) through (11) are added to that section, to
52 read:
53 914.28 Confidential informants.—
54 (3) A law enforcement agency that uses confidential
55 informants shall:
56 (f) Adopt policies and procedures that provide reasonable
57 protective measures for confidential informants when it knows or
58 should have known of a risk or threat of harm to a person
59 serving as a confidential informant and the risk or threat of
60 harm is a result of his or her service to the law enforcement
61 agency.
62 (g) Provide prospective and current confidential informants
63 who are known to be substance abusers or to be at risk for
64 substance abuse with information on substance abuse treatment
65 options that may be available in their community or region.
66 (4) A law enforcement agency that uses confidential
67 informants shall establish policies and procedures addressing
68 the recruitment, control, and use of confidential informants.
69 The policies and procedures must state the:
70 (a) Information that the law enforcement agency must shall
71 maintain concerning each confidential informant;
72 (b) General guidelines for the management and safety of
73 handling confidential informants;
74 (c) Process to advise a confidential informant of
75 conditions, restrictions, and procedures associated with
76 participating in the agency’s investigative or intelligence
77 gathering activities;
78 (d) Designated supervisory or command-level review and
79 oversight in the use of a confidential informant;
80 (e) Limits or restrictions on off-duty association or
81 social relationships by agency personnel involved in
82 investigative or intelligence gathering with confidential
83 informants;
84 (f) Guidelines to deactivate confidential informants,
85 including guidelines for deactivating communications with
86 confidential informants; and
87 (g) Training requirements that agency personnel must
88 complete in order to recruit and manage confidential informants,
89 which must be consistent with national law enforcement standards
90 Level of supervisory approval required before a juvenile is used
91 as a confidential informant.
92 (5) A law enforcement agency that uses confidential
93 informants shall establish policies and procedures to assess the
94 suitability of using a person as a confidential informant which,
95 at a minimum, consider all of by considering the minimum
96 following factors:
97 (a) The person’s age, and maturity, and experience to serve
98 as a confidential informant.;
99 (b) The risk the person poses to adversely affect a present
100 or potential investigation or prosecution.;
101 (c) The effect upon agency efforts that the disclosure of
102 the person’s cooperation may have on the agency’s investigative
103 or intelligence-gathering activities. in the community may have;
104 (d) Whether the person is a substance abuser or has a
105 history of substance abuse. or is in a court-supervised drug
106 treatment program;
107 (e) The risk of physical harm to the person, his or her
108 immediate family, or close associates as a result of providing
109 information or assistance, or upon the public disclosure of the
110 person’s assistance. to the community;
111 (f) Whether the person has shown any indication of
112 emotional instability or, unreliability, or has furnished of
113 furnishing false information.;
114 (g) The person’s criminal history or prior criminal
115 record.; and
116 (h) Whether the use of the person may be necessary is
117 important to or vital to the success of an investigation.
118 (7) A state or local law enforcement agency that uses
119 confidential informants shall perform a periodic review of
120 actual agency confidential informant practices to ensure
121 conformity with the agency’s policies and procedures and this
122 section.
123 (8) A law enforcement agency that enlists a person to be a
124 confidential informant shall inform the person of the right to
125 consult with legal counsel before entering into a Substantial
126 Assistance Agreement to serve as a confidential informant.
127 However, the agency may advise the prospective confidential
128 informant that he or she may waive the right to consult with
129 legal counsel before entering into the Substantial Assistance
130 Agreement, and he or she may serve as a confidential informant
131 without consulting with legal counsel if such waiver is
132 documented.
133 (9)(a) A person who is younger than 18 years of age may not
134 participate in a controlled buy or sale of contraband or related
135 activities without the written consent of a parent or legal
136 guardian, but may provide confidential information to a law
137 enforcement agency.
138 (b) A person who is receiving inpatient or outpatient
139 substance abuse treatment from a licensed service provider
140 pursuant to chapter 394 may not participate in a controlled buy
141 or sale of contraband or related activities, but may provide
142 confidential information to a law enforcement agency while
143 receiving substance abuse treatment. A person who is under the
144 jurisdiction of a drug court or participating in a drug court
145 program may not participate in a controlled buy or sale or
146 related activities without the consent of the state attorney
147 assigned to the drug court program. If a law enforcement agency
148 believes that a drug court participant has violated any drug
149 court rule, the law enforcement agency shall promptly report the
150 participant to the state attorney assigned to the drug court.
151 (10) A law enforcement agency that uses confidential
152 informants shall collect and report data that include the
153 information required by paragraphs (a)—(h). The Department of
154 Law Enforcement shall develop and disseminate a standardized
155 form that must be completed by every law enforcement agency that
156 uses confidential informants. A law enforcement agency that uses
157 confidential informants shall collect such data for the
158 preceding calendar year and report the data by March 1 of each
159 year to the department. Upon receipt of the completed forms, the
160 department shall compile the data and, by June 1 of each year,
161 publicly release a report on paragraphs (a)-(h). The data and
162 report may not include categories of active confidential
163 informants compiled by race, ethnicity, gender, and zip code or
164 disclose the identity of a confidential informant, but must
165 include all of the following information:
166 (a) The number of active confidential informants.
167 (b) The ages of active confidential informants.
168 (c) The number of confidential informants used to conduct
169 controlled buys or sales of contraband or related activities on
170 behalf of the agency.
171 (d) The number of deaths of confidential informants which
172 occurred during controlled buys or sales of contraband or
173 related activities conducted on behalf of the agency.
174 (e) The number of injuries to confidential informants which
175 occurred during controlled buys or sales of contraband or
176 related activities conducted on behalf of the agency.
177 (f) The number of deaths of confidential informants whose
178 cause of death may be related to their service as a confidential
179 informant.
180 (g) The number of injuries to confidential informants whose
181 cause of injury may be related to their service as a
182 confidential informant.
183 (h) The total amount of cash payments provided to each
184 confidential informant by the agency.
185 (11) A law enforcement officer, or a person designated as
186 support personnel as defined in s. 943.10(11), who willfully
187 fails to comply with this act commits culpable negligence as
188 provided in s. 782.07(1) or s. 784.05(1).
189 (12)(8) The provisions of This section and policies and
190 procedures adopted pursuant to this section do not grant any
191 right or entitlement to a confidential informant or a person who
192 is requested to be a confidential informant, and any failure to
193 abide by this section may not be relied upon to create any
194 additional right, substantive or procedural, enforceable at law
195 by a defendant in a criminal proceeding.
196 Section 2. This act shall take effect October 1, 2016.