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. 23 24 Be It Enacted by the Legislature of the State of Florida: 25 26 Section 1. Section 900.05, Florida Statutes, is created to 27 read: 28 900.05 Recording 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.