Florida Senate - 2018                                    SB 1220
       By Senator Brandes
       24-00773-18                                           20181220__
    1                        A bill to be entitled                      
    2         An act relating to custodial interrogations; creating
    3         s. 900.05, F.S.; defining terms and specifying covered
    4         offenses; requiring that a custodial interrogation at
    5         a place of detention be electronically recorded in its
    6         entirety in connection with certain offenses;
    7         requiring law enforcement officers who do not comply
    8         with the electronic recording requirement or who
    9         conduct custodial interrogations at a place other than
   10         a place of detention to prepare a specified report;
   11         providing exceptions to the electronic recording
   12         requirement; requiring a court to consider a law
   13         enforcement officer’s failure to comply with the
   14         electronic recording requirements in determining the
   15         admissibility of a statement unless an exception
   16         applies; requiring a court, upon the request of a
   17         defendant, to give cautionary instructions to a jury
   18         under certain circumstances; providing immunity from
   19         civil liability to law enforcement agencies that
   20         enforce certain rules; providing that no cause of
   21         action is created against a law enforcement officer;
   22         providing an effective date.
   24  Be It Enacted by the Legislature of the State of Florida:
   26         Section 1. Section 900.05, Florida Statutes, is created to
   27  read:
   28         900.05Recording of custodial interrogations for certain
   29  offenses.—
   30         (1) As used in this section, the term:
   31         (a) “Custodial interrogation” means questioning or other
   32  conduct by a law enforcement officer which is reasonably likely
   33  to elicit an incriminating response from an individual and which
   34  occurs under circumstances in which a reasonable individual in
   35  the same circumstances would consider himself or herself to be
   36  in the custody of a law enforcement agency.
   37         (b) “Electronic recording” means an audio recording or an
   38  audio and video recording that accurately records a custodial
   39  interrogation.
   40         (c)“Covered offense” includes:
   41         1. Arson.
   42         2. Sexual battery.
   43         3. Robbery.
   44         4. Kidnapping.
   45         5. Aggravated child abuse.
   46         6. Aggravated abuse of an elderly person or disabled adult.
   47         7. Aggravated assault with a deadly weapon.
   48         8. Murder.
   49         9. Manslaughter.
   50         10. Aggravated manslaughter of an elderly person or
   51  disabled adult.
   52         11. Aggravated manslaughter of a child.
   53         12. The unlawful throwing, placing, or discharging of a
   54  destructive device or bomb.
   55         13. Armed burglary.
   56         14. Aggravated battery.
   57         15. Aggravated stalking.
   58         16. Home invasion or robbery.
   59         17. Carjacking.
   60         (d) “Place of detention” means a fixed location under the
   61  control of a law enforcement agency where persons may be
   62  questioned in connection with suspected criminal offenses or
   63  where persons are detained temporarily in connection with
   64  criminal charges pending a potential arrest or citation,
   65  including, but not limited to, a police department or sheriff’s
   66  office, a correctional facility, or a detention facility. The
   67  term does not include a police vehicle.
   68         (e) “Statement” means a communication that is oral,
   69  written, electronic, nonverbal, or in sign language.
   70         (2)(a) A custodial interrogation at a place of detention,
   71  including the giving of a required warning, the advisement of
   72  the rights of the individual being questioned, and the waiver of
   73  any rights by the individual, must be electronically recorded in
   74  its entirety if the interrogation is related to a covered
   75  offense.
   76         (b) If a law enforcement officer conducts a custodial
   77  interrogation at a place of detention without electronically
   78  recording the interrogation, the officer shall prepare a written
   79  report explaining the reason for his or her noncompliance with
   80  this section and summarizing the custodial interrogation process
   81  and the individual’s statements.
   82         (c) As soon as practicable, a law enforcement officer who
   83  conducts a custodial interrogation at a place other than a place
   84  of detention shall prepare a written report explaining the
   85  decision to interrogate at that place and summarizing the
   86  custodial interrogation process and the individual’s statements
   87  made at that place.
   88         (d) Paragraph (a) does not apply:
   89         1. If an unforeseen equipment malfunction prevents
   90  recording the custodial interrogation in its entirety;
   91         2. If a suspect refuses to participate in a custodial
   92  interrogation if his or her statements are electronically
   93  recorded;
   94         3. Due to equipment operator error;
   95         4. If the statement is made spontaneously and not in
   96  response to a custodial interrogation question;
   97         5. If a statement is made after questioning that is
   98  routinely asked during the processing of the arrest of a
   99  suspect;
  100         6. If the custodial interrogation occurs when no law
  101  enforcement officer participating in the interrogation has
  102  knowledge of facts and circumstances that would lead an officer
  103  to reasonably believe that the individual being interrogated may
  104  have committed a covered offense;
  105         7. If the law enforcement officer conducting the custodial
  106  interrogation reasonably believes that electronic recording
  107  would jeopardize the safety of the officer, individual being
  108  interrogated, or others; or
  109         8. If the custodial interrogation is conducted outside of
  110  the state.
  111         (3) Unless a court finds that one or more of the
  112  circumstances specified in paragraph (2)(d) apply, the court
  113  shall consider a law enforcement officer’s failure to make an
  114  electronic recording of all or part of a custodial interrogation
  115  in determining whether a statement made during the interrogation
  116  is admissible. If the court admits into evidence a statement
  117  made during a custodial interrogation that was not
  118  electronically recorded as required under paragraph (2)(a), the
  119  court must, upon request of the defendant, give cautionary
  120  instructions to the jury regarding the law enforcement officer’s
  121  failure to comply.
  122         (4) A law enforcement agency in this state which has
  123  enforced rules adopted pursuant to this section which are
  124  reasonably designed to ensure compliance with the requirements
  125  of this section is not subject to civil liability for damages
  126  arising from a violation of this section. This section does not
  127  create a cause of action against a law enforcement officer.
  128         Section 2. This act shall take effect July 1, 2018.