Florida Senate - 2018                      CS for CS for SB 1220
       By the Committees on Judiciary; and Criminal Justice; and
       Senator Brandes
       590-03480-18                                          20181220c2
    1                        A bill to be entitled                      
    2         An act relating to detention facilities; creating s.
    3         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         amending s. 951.22, F.S.; prohibiting introduction
   23         into or possession of, on the grounds of any county
   24         detention facility, any cellular telephone or other
   25         portable communication device; defining the term
   26         “portable communication device”; providing criminal
   27         penalties; amending s. 921.0022, F.S.; conforming a
   28         cross-reference; conforming a provision to changes
   29         made by the act; providing an effective date.
   31  Be It Enacted by the Legislature of the State of Florida:
   33         Section 1. Section 900.05, Florida Statutes, is created to
   34  read:
   35         900.05Recording of custodial interrogations for certain
   36  offenses.—
   37         (1) As used in this section, the term:
   38         (a) “Custodial interrogation” means questioning or other
   39  conduct by a law enforcement officer which is reasonably likely
   40  to elicit an incriminating response from an individual and which
   41  occurs under circumstances in which a reasonable individual in
   42  the same circumstances would consider himself or herself to be
   43  in the custody of a law enforcement agency.
   44         (b) “Electronic recording” means an audio recording or an
   45  audio and video recording that accurately records a custodial
   46  interrogation.
   47         (c)“Covered offense” includes:
   48         1. Arson.
   49         2. Sexual battery.
   50         3. Robbery.
   51         4. Kidnapping.
   52         5. Aggravated child abuse.
   53         6. Aggravated abuse of an elderly person or disabled adult.
   54         7. Aggravated assault with a deadly weapon.
   55         8. Murder.
   56         9. Manslaughter.
   57         10. Aggravated manslaughter of an elderly person or
   58  disabled adult.
   59         11. Aggravated manslaughter of a child.
   60         12. The unlawful throwing, placing, or discharging of a
   61  destructive device or bomb.
   62         13. Armed burglary.
   63         14. Aggravated battery.
   64         15. Aggravated stalking.
   65         16. Home-invasion robbery.
   66         17. Carjacking.
   67         (d) “Place of detention” means a police station, sheriff’s
   68  office, correctional facility, prisoner holding facility, or
   69  other governmental facility where an individual may be held in
   70  connection with a criminal charge that has been or may be filed
   71  against the individual.
   72         (e) “Statement” means a communication that is oral,
   73  written, electronic, nonverbal, or in sign language.
   74         (2)(a) A custodial interrogation at a place of detention,
   75  including the giving of a required warning, the advisement of
   76  the rights of the individual being questioned, and the waiver of
   77  any rights by the individual, must be electronically recorded in
   78  its entirety if the interrogation is related to a covered
   79  offense.
   80         (b) If a law enforcement officer conducts a custodial
   81  interrogation at a place of detention without electronically
   82  recording the interrogation, the officer shall prepare a written
   83  report explaining the reason for his or her noncompliance with
   84  this section and summarizing the custodial interrogation process
   85  and the individual’s statements.
   86         (c) As soon as practicable, a law enforcement officer who
   87  conducts a custodial interrogation at a place other than a place
   88  of detention shall prepare a written report explaining the
   89  decision to interrogate at that place and summarizing the
   90  custodial interrogation process and the individual’s statements
   91  made at that place.
   92         (d) Paragraph (a) does not apply:
   93         1. If an unforeseen equipment malfunction prevents
   94  recording the custodial interrogation in its entirety;
   95         2. If a suspect refuses to participate in a custodial
   96  interrogation if his or her statements are electronically
   97  recorded;
   98         3. Due to equipment operator error;
   99         4. If the statement is made spontaneously and not in
  100  response to a custodial interrogation question;
  101         5. If a statement is made after questioning that is
  102  routinely asked during the processing of the arrest of a
  103  suspect;
  104         6. If the custodial interrogation occurs when no law
  105  enforcement officer participating in the interrogation has
  106  knowledge of facts and circumstances that would lead an officer
  107  to reasonably believe that the individual being interrogated may
  108  have committed a covered offense;
  109         7. If the law enforcement officer conducting the custodial
  110  interrogation reasonably believes that electronic recording
  111  would jeopardize the safety of the officer, the individual being
  112  interrogated, or of others; or
  113         8. If the custodial interrogation is conducted outside of
  114  the state.
  115         (3) Unless a court finds that one or more of the
  116  circumstances specified in paragraph (2)(d) apply, the court
  117  must consider a law enforcement officer’s failure to make an
  118  electronic recording of all or part of a custodial interrogation
  119  in determining whether a statement made during the interrogation
  120  is admissible. If the court admits into evidence a statement
  121  made during a custodial interrogation that was not
  122  electronically recorded as required under paragraph (2)(a), the
  123  court must, upon request of the defendant, give cautionary
  124  instructions to the jury regarding the law enforcement officer’s
  125  failure to comply.
  126         (4) A law enforcement agency in this state which has
  127  enforced rules adopted pursuant to this section which are
  128  reasonably designed to ensure compliance with the requirements
  129  of this section is not subject to civil liability for damages
  130  arising from a violation of this section. This section does not
  131  create a cause of action against a law enforcement officer.
  132         Section 2. Section 951.22, Florida Statutes, is amended to
  133  read:
  134         951.22 County detention facilities; contraband articles.—
  135         (1) It is unlawful, except through regular channels as duly
  136  authorized by the sheriff or officer in charge, to introduce
  137  into or possess upon the grounds of any county detention
  138  facility as defined in s. 951.23 or to give to or receive from
  139  any inmate of any such facility wherever said inmate is located
  140  at the time or to take or to attempt to take or send therefrom
  141  any of the following articles which are hereby declared to be
  142  contraband:
  143         (a)for the purposes of this act, to wit: Any written or
  144  recorded communication.;
  145         (b) Any currency or coin.;
  146         (c) Any article of food or clothing.;
  147         (d) Any tobacco products as defined in s. 210.25(12).;
  148         (e) Any cigarette as defined in s. 210.01(1).;
  149         (f) Any cigar.;
  150         (g) Any intoxicating beverage or beverage which causes or
  151  may cause an intoxicating effect.;
  152         (h) Any narcotic, hypnotic, or excitative drug or drug of
  153  any kind or nature, including nasal inhalators, sleeping pills,
  154  barbiturates, and controlled substances as defined in s.
  155  893.02(4).;
  156         (i) Any firearm or any instrumentality customarily used or
  157  which is intended to be used as a dangerous weapon.; and
  158         (j) Any instrumentality of any nature that may be or is
  159  intended to be used as an aid in effecting or attempting to
  160  effect an escape from a county facility.
  161         (k)Any cellular telephone or other portable communication
  162  device intentionally and unlawfully introduced inside the secure
  163  perimeter of a county detention facility without prior
  164  authorization or consent from the sheriff or officer in charge
  165  of such detention facility. As used in this paragraph, the term
  166  “portable communication device” means any device carried, worn,
  167  or stored which is designed or intended to receive or transmit
  168  verbal or written messages, access or store data, or connect
  169  electronically to the Internet or any other electronic device
  170  and which allows communications in any form. Such devices
  171  include, but are not limited to, portable two-way pagers,
  172  handheld radios, cellular telephones, Blackberry-type devices,
  173  personal digital assistants or PDAs, laptop computers, or any
  174  components of these devices which are intended to be used to
  175  assemble such devices. The term also includes any new technology
  176  that is developed for similar purposes. Excluded from this
  177  definition is any device having communication capabilities which
  178  has been approved or issued by the sheriff or officer in charge
  179  for investigative or institutional security purposes or for
  180  conducting other official business.
  181         (2) A person who Whoever violates paragraph (1)(a), (b),
  182  (c), (d), (e), (f), or (g) commits a misdemeanor of the first
  183  degree, punishable as provided in s. 775.082 or s. 775.083. A
  184  person who violates paragraph (1)(h), (i), (j), or (k) commits
  185  subsection (1) shall be guilty of a felony of the third degree,
  186  punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
  187         Section 3. Paragraph (f) of subsection (3) of section
  188  921.0022, Florida Statutes, is amended to read:
  189         921.0022 Criminal Punishment Code; offense severity ranking
  190  chart.—
  192         (f) LEVEL 6
  194  FloridaStatute    FelonyDegree           Description            
  195  316.027(2)(b)        2nd   Leaving the scene of a crash involving serious bodily injury.
  196  316.193(2)(b)        3rd   Felony DUI, 4th or subsequent conviction.
  197  400.9935(4)(c)       2nd   Operating a clinic, or offering services requiring licensure, without a license.
  198  499.0051(2)          2nd   Knowing forgery of transaction history, transaction information, or transaction statement.
  199  499.0051(3)          2nd   Knowing purchase or receipt of prescription drug from unauthorized person.
  200  499.0051(4)          2nd   Knowing sale or transfer of prescription drug to unauthorized person.
  201  775.0875(1)          3rd   Taking firearm from law enforcement officer.
  202  784.021(1)(a)        3rd   Aggravated assault; deadly weapon without intent to kill.
  203  784.021(1)(b)        3rd   Aggravated assault; intent to commit felony.
  204  784.041              3rd   Felony battery; domestic battery by strangulation.
  205  784.048(3)           3rd   Aggravated stalking; credible threat.
  206  784.048(5)           3rd   Aggravated stalking of person under 16.
  207  784.07(2)(c)         2nd   Aggravated assault on law enforcement officer.
  208  784.074(1)(b)        2nd   Aggravated assault on sexually violent predators facility staff.
  209  784.08(2)(b)         2nd   Aggravated assault on a person 65 years of age or older.
  210  784.081(2)           2nd   Aggravated assault on specified official or employee.
  211  784.082(2)           2nd   Aggravated assault by detained person on visitor or other detainee.
  212  784.083(2)           2nd   Aggravated assault on code inspector.
  213  787.02(2)            3rd   False imprisonment; restraining with purpose other than those in s. 787.01.
  214  790.115(2)(d)        2nd   Discharging firearm or weapon on school property.
  215  790.161(2)           2nd   Make, possess, or throw destructive device with intent to do bodily harm or damage property.
  216  790.164(1)           2nd   False report concerning bomb, explosive, weapon of mass destruction, act of arson or violence to state property, or use of firearms in violent manner.
  217  790.19               2nd   Shooting or throwing deadly missiles into dwellings, vessels, or vehicles.
  218  794.011(8)(a)        3rd   Solicitation of minor to participate in sexual activity by custodial adult.
  219  794.05(1)            2nd   Unlawful sexual activity with specified minor.
  220  800.04(5)(d)         3rd   Lewd or lascivious molestation; victim 12 years of age or older but less than 16 years of age; offender less than 18 years.
  221  800.04(6)(b)         2nd   Lewd or lascivious conduct; offender 18 years of age or older.
  222  806.031(2)           2nd   Arson resulting in great bodily harm to firefighter or any other person.
  223  810.02(3)(c)         2nd   Burglary of occupied structure; unarmed; no assault or battery.
  224  810.145(8)(b)        2nd   Video voyeurism; certain minor victims; 2nd or subsequent offense.
  225  812.014(2)(b)1.      2nd   Property stolen $20,000 or more, but less than $100,000, grand theft in 2nd degree.
  226  812.014(6)           2nd   Theft; property stolen $3,000 or more; coordination of others.
  227  812.015(9)(a)        2nd   Retail theft; property stolen $300 or more; second or subsequent conviction.
  228  812.015(9)(b)        2nd   Retail theft; property stolen $3,000 or more; coordination of others.
  229  812.13(2)(c)         2nd   Robbery, no firearm or other weapon (strong-arm robbery).
  230  817.4821(5)          2nd   Possess cloning paraphernalia with intent to create cloned cellular telephones.
  231  817.505(4)(b)        2nd   Patient brokering; 10 or more patients.
  232  825.102(1)           3rd   Abuse of an elderly person or disabled adult.
  233  825.102(3)(c)        3rd   Neglect of an elderly person or disabled adult.
  234  825.1025(3)          3rd   Lewd or lascivious molestation of an elderly person or disabled adult.
  235  825.103(3)(c)        3rd   Exploiting an elderly person or disabled adult and property is valued at less than $10,000.
  236  827.03(2)(c)         3rd   Abuse of a child.                 
  237  827.03(2)(d)         3rd   Neglect of a child.               
  238  827.071(2) & (3)     2nd   Use or induce a child in a sexual performance, or promote or direct such performance.
  239  836.05               2nd   Threats; extortion.               
  240  836.10               2nd   Written threats to kill or do bodily injury.
  241  843.12               3rd   Aids or assists person to escape. 
  242  847.011              3rd   Distributing, offering to distribute, or possessing with intent to distribute obscene materials depicting minors.
  243  847.012              3rd   Knowingly using a minor in the production of materials harmful to minors.
  244  847.0135(2)          3rd   Facilitates sexual conduct of or with a minor or the visual depiction of such conduct.
  245  914.23               2nd   Retaliation against a witness, victim, or informant, with bodily injury.
  246  944.35(3)(a)2.       3rd   Committing malicious battery upon or inflicting cruel or inhuman treatment on an inmate or offender on community supervision, resulting in great bodily harm.
  247  944.40               2nd   Escapes.                          
  248  944.46               3rd   Harboring, concealing, aiding escaped prisoners.
  249  944.47(1)(a)5.       2nd   Introduction of contraband (firearm, weapon, or explosive) into correctional facility.
  250  951.22(1)(h)-(k)951.22(1)   3rd   Introduction of contraband into county detention facility Intoxicating drug, firearm, or weapon introduced into county facility.
  251         Section 4. This act shall take effect January 1, 2019.