Relates to confidential informants

Summary of specific provisions

Section 1. Adds a new section 60.23 to the criminal procedure law. 60 23.1: This new section defines the following terms confidential informant, controlled buy, controlled sale, law enforcement agency and target offender.

60.23.2: This section requires law enforcement agencies that use confidential informants to inform each person who is requested to serve as a confidential informant: that the agency cannot promise inducements in exchange for serving as a confidential informant; that the value of his or her assistance and any effect of the assistance on pending criminal matters can be determined only by the appropriate legal authority; and that each person who is solicited to act as a confidential informant must be given the opportunity to consult with legal counsel before entering into a substantial assistance agreement. The agency must also ensure that personnel who are involved in the use or recruitment of confidential Informants are trained in the law enforcement agency's policies and procedures, and must adopt policies and procedures that assign the highest priority in operational decisions and actions to the preservation of the safety of confidential informants, law enforcement personnel, target offenders and the public.

60.23.3: The section requires the law enforcement agency that uses confidential informants to establish policies and procedures addressing the recruitment, control and use of confidential informants. The policies and procedures must state the information that will be maintained about each confidential informant, general guidelines for handling informants; a process for advising the informant of conditions, restrictions, and procedures associated with participating in the agency's investigative or intelligence gathering activities; the designated supervisory or command level review and oversight in the use of a confidential informant, limits or restrictions on off-duty association or relationships by agency personnel with confidential informants, guidelines to deactivate confidential informants and communications with them; and the level of supervisory approval required before a juvenile is used as a confidential informant.

60.23.4: The section provides for establishing policies and procedures to assess the suitability of using a person as an informant by consider- ing a variety of factors, including the person's age,

maturity, mental capacity, and youthful offender status; risk of physical harm to the person, his or her immediate family, or close associates as a result of providing information or assistance, or upon the disclosure of the person's assistance to the community; the reliability of the person; the effect upon agency efforts that the disclosure of the person's cooper- ation in the community may have; whether the person is a substance abus- er or has a history of substance abuse or is in a court-supervised drug treatment program; the person's criminal history or prior criminal record; and whether the use of the person is important to or vital to the success of an investigation.

60.23.5: The section requires law enforcement agencies to establish written security procedures that provide for the secured retention of records related to the use of confidential sources; limits the avail- ability of the records relating to confidential informants to those within the law enforcement agency or law enforcement community, or those having a need to review the records, or whose access has been required by court process; requires the notation of each person who accesses the records: provides for review by the agency to ensure the security procedures are followed; and defines the process by which records concerning an informant may be lawfully destroyed.

60.23.6. The section requires state or local law enforcement agencies that use confidential informants to conduct a periodic review of actual agency confidential informant practices to ensure conformity with the agency's policies and procedures and this section.

60 23.7. The section makes clear this legislation does not grant any right or entitlement to a confidential informant or a person who is requested to be a confidential informant, and any failure to abide by this section may not be relied upon to create any additional right, substantive or procedural, enforceable at law by a defendant in a criminal proceeding.

Section 2. Provides for the effective date.

Justification

This legislation is based on Florida's "Rachel's Law." In 2008, Rachel Hoffman, a 23 year-old Florida State University graduate, was recruited by Tallahassee police to be a confidential informant. She agreed to be a confidential informant because of a prior arrest and a belief that charges against her could be reduced or dropped. However, when she was sent to a controlled buy, she was killed by those who had found out she was a confidential informant.

Confidential Informants play an important role in curbing the sale and use of drugs in our state, but without safeguards to protect the informants, and the liability of the officers who recruit them, thousands of individuals are at risk.

This legislation would regulate the use of confidential informants. Such regulation would include the adoption of policies and procedures by law enforcement agencies governing the ability to use confidential informants and disclosure of information to the informants.

Prior legislative history

New legislation in 2013; referred to the Codes Committee in both houses.

06/10/13 REFERRED TO CODES 10/25/13 AMEND AND RECOMMIT TO CODES 10/25/13 PRINT NUMBER 5732A 01/08/14 REFERRED TO CODES

Fiscal implications

None specifically noted.

Effective date

The first of November next succeeding the date on which it shall have become a law.