Florida Senate - 2015                                     SB 372
       
       
        
       By Senator Dean
       
       
       
       
       
       5-00197B-15                                            2015372__
    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 refer certain
    7         prospective and current confidential informants to
    8         substance abuse prevention or treatment services;
    9         requiring that the policies and procedures provide
   10         general guidelines for the management and safety of
   11         confidential informants and training requirements for
   12         certain agency personnel; revising factors used in
   13         assessing a person’s suitability as a confidential
   14         informant; requiring law enforcement agencies that
   15         solicit persons to act as confidential informants to
   16         provide them with the opportunity to consult with an
   17         attorney before signing an assistance agreement;
   18         allowing such agencies to advise prospective
   19         confidential informants that they may waive that
   20         right; prohibiting a person under the age of 18 from
   21         participating in certain activities; allowing such
   22         person to provide confidential information to a law
   23         enforcement agency; prohibiting a person who is
   24         receiving substance abuse services or related
   25         treatment from participating in certain activities;
   26         allowing such person to provide confidential
   27         information to a law enforcement agency; prohibiting
   28         Florida College System and university police from
   29         recruiting or using enrolled students for certain
   30         activities; allowing a student to provide confidential
   31         information to Florida College System or university
   32         police or another law enforcement agency; requiring a
   33         law enforcement agency to annually collect and submit
   34         confidential informant data to the Department of Law
   35         Enforcement; prohibiting such data from disclosing the
   36         identity of a confidential informant; specifying
   37         information required to be submitted to the
   38         department; requiring the department make such data
   39         publicly available by a specified date; providing
   40         criminal penalties; providing an effective date.
   41          
   42  Be It Enacted by the Legislature of the State of Florida:
   43  
   44         Section 1. Paragraphs (f) and (g) are added to subsection
   45  (3) of section 914.28, Florida Statutes, subsections (4), (5),
   46  and (7) of that section are amended, present subsection (8) of
   47  that section is redesignated as subsection (13), and a new
   48  subsection (8) and subsections (9) through (12) are added to
   49  that section, to read:
   50         914.28 Confidential informants.—
   51         (3) A law enforcement agency that uses confidential
   52  informants shall:
   53         (f) Adopt policies and procedures that provide reasonable
   54  protective measures for confidential informants when a law
   55  enforcement agency knows or should have known of a risk or
   56  threat of harm to a person serving as a confidential informant
   57  and the risk or threat of harm is a result of his or her service
   58  to the law enforcement agency.
   59         (g) Refer prospective and current confidential informants
   60  who are known to be substance abusers or to be at risk for
   61  substance abuse to prevention or treatment services.
   62         (4) A law enforcement agency that uses confidential
   63  informants shall establish policies and procedures addressing
   64  the recruitment, control, and use of confidential informants.
   65  The policies and procedures must state the:
   66         (a) Information that the law enforcement agency shall
   67  maintain concerning each confidential informant;
   68         (b) General guidelines for the management and safety of
   69  handling confidential informants;
   70         (c) Process to advise a confidential informant of
   71  conditions, restrictions, and procedures associated with
   72  participating in the agency’s investigative or intelligence
   73  gathering activities;
   74         (d) Designated supervisory or command-level review and
   75  oversight in the use of a confidential informant;
   76         (e) Limits or restrictions on off-duty association or
   77  social relationships by agency personnel involved in
   78  investigative or intelligence gathering with confidential
   79  informants;
   80         (f) Guidelines to deactivate confidential informants,
   81  including guidelines for deactivating communications with
   82  confidential informants; and
   83         (g) Training requirements that agency personnel must
   84  complete in order to recruit and manage confidential informants
   85  which are consistent with national law enforcement standards
   86  Level of supervisory approval required before a juvenile is used
   87  as a confidential informant.
   88         (5) A law enforcement agency that uses confidential
   89  informants shall establish policies and procedures to assess the
   90  suitability of using a person as a confidential informant which,
   91  at a minimum, consider all of by considering the minimum
   92  following factors:
   93         (a) The person’s age, and maturity, and experience to serve
   94  as a confidential informant.;
   95         (b) The risk the person poses to adversely affect a present
   96  or potential investigation or prosecution.;
   97         (c) The effect upon agency efforts that the disclosure of
   98  the person’s cooperation may have on the agency’s investigative
   99  or intelligence gathering activities. in the community may have;
  100         (d) Whether the person is a substance abuser or has a
  101  history of substance abuse. or is in a court-supervised drug
  102  treatment program;
  103         (e) The risk of physical harm to the person, his or her
  104  immediate family, or close associates as a result of providing
  105  information or assistance, or upon the disclosure of the
  106  person’s assistance. to the community;
  107         (f) Whether the person has shown any indication of
  108  emotional instability or, unreliability, or of furnishing false
  109  information.;
  110         (g) The person’s criminal history or prior criminal
  111  record.; and
  112         (h) Whether the use of the person is necessary important to
  113  or vital to the success of an investigation.
  114         (7) A state or local law enforcement agency that uses
  115  confidential informants shall perform a periodic review of
  116  actual agency confidential informant practices to ensure
  117  conformity with the agency’s policies and procedures and this
  118  section.
  119         (8)A law enforcement agency that solicits a person to act
  120  as a confidential informant shall give that person the
  121  opportunity to consult with legal counsel before entering into
  122  an assistance agreement and serving as a confidential informant.
  123  However, the agency may advise the prospective confidential
  124  informant that he or she may waive the right to consult with
  125  legal counsel before entering into the assistance agreement, and
  126  he or she may serve as a confidential informant without
  127  consulting with legal counsel if such waiver is documented.
  128         (9)(a) A person who is younger than 18 years of age may not
  129  participate in a controlled buy or sale of contraband or related
  130  activities, but may provide confidential information to a law
  131  enforcement agency.
  132         (b) A person who is receiving inpatient or outpatient
  133  substance abuse treatment from a licensed service provider, is
  134  in a treatment-based drug court program, or is otherwise
  135  receiving treatment or related services pursuant to chapter 397
  136  may not participate in a controlled buy or sale of contraband or
  137  related activities, but may provide confidential information to
  138  a law enforcement agency while receiving substance abuse
  139  treatment.
  140         (10) Florida College System and university police who are
  141  regulated under s. 1012.88 or s. 1012.97, respectively, may not
  142  recruit, assist in the recruitment of, refer to another law
  143  enforcement agency, or otherwise use an enrolled student to
  144  participate in a controlled buy or sale of contraband or related
  145  activities, but an enrolled student may provide confidential
  146  information to such police or another law enforcement agency.
  147         (11) A law enforcement agency that uses confidential
  148  informants shall collect and report data that includes the
  149  information required by paragraphs (a) through (j). The
  150  Department of Law Enforcement shall develop and disseminate a
  151  standardized form that must be completed by every law
  152  enforcement agency that uses confidential informants. A law
  153  enforcement agency that uses confidential informants shall
  154  collect such data for the preceding calendar year and report it
  155  by March 1 of each year to the department. Upon receipt of the
  156  completed forms, the department shall compile the data and, by
  157  each June 1, issue a publicly available report. The data and
  158  report may not disclose the identity of a confidential informant
  159  but must include all of the following information:
  160         (a) The number of active confidential informants.
  161         (b) Categories of active confidential informants compiled
  162  by race, ethnicity, gender, age, and zip code.
  163         (c) The number of confidential informants used to conduct
  164  controlled buys or sales of contraband, or related activities
  165  conducted on behalf of the agency.
  166         (d) The number of deaths of confidential informants which
  167  occurred during controlled buys or sales of contraband, or
  168  related activities conducted on behalf of the agency.
  169         (e) The number of injuries to confidential informants that
  170  occurred during controlled buys or sales of contraband, or
  171  related activities conducted on behalf of the agency.
  172         (f) The number of deaths of confidential informants whose
  173  cause of death may be related to their service as a confidential
  174  informant.
  175         (g) The number of injuries to confidential informants whose
  176  cause of injury may be related to their service as a
  177  confidential informant.
  178         (h) The total amount of cash payments provided to a
  179  confidential informant by the agency.
  180         (i)The total number of dropped or reduced charges provided
  181  to a prospective or current confidential informant by the
  182  agency.
  183         (j) The total number of instances in which the law
  184  enforcement agency recommended leniency for a confidential
  185  informant at sentencing.
  186         (12) A law enforcement officer, or a person designated as
  187  support personnel as defined in s. 943.10(11), who willfully
  188  fails to comply with this act commits a felony of the third
  189  degree, punishable as provided in s. 775.082, s. 775.083, or s.
  190  775.084.
  191         (13)(8)The provisions of This section and policies and
  192  procedures adopted pursuant to this section do not grant any
  193  right or entitlement to a confidential informant or a person who
  194  is requested to be a confidential informant, and any failure to
  195  abide by this section may not be relied upon to create any
  196  additional right, substantive or procedural, enforceable at law
  197  by a defendant in a criminal proceeding.
  198         Section 2. This act shall take effect October 1, 2015.