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.