Florida Statute Section 914.28 on confidential informants is often cited as”Rachel’s Law.” Unfortunately, the provisions of Rachel’s Law do not necessarily “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.”
Nevertheless, when showing that a due process violation has occurred that should result in the dismissal of the charges, compliance with Rachel’s Law is one important provision considered by the courts.
Attorneys explain Rachel’s Law in Florida
If you are interested in learning more about how Rachel’s Law might impact your case involving a substantial assistance agreement, then contact the experienced criminal defense attorneys at Sammis Law Firm. We understand the standard operating procedures that local law enforcement agencies must follow when using confidential informants.
A person who is considering working as a confidential informant should seek out the services of an experienced criminal defense lawyer. We can help you understand how to protect your rights as you assert legal defenses that might apply in your case.
Contact us for a confidential consultation. Call (813) 250-0500 today.
Definitions in Rachel’s Law
Under Section 914.28(2)(b), the term “controlled buy” means the purchase of contraband, controlled substances, or other items that are material to a criminal investigation from a target offender which is initiated, managed, overseen, or participated in by law enforcement personnel with the knowledge of a confidential informant.
The term “controlled sale” means the sale of contraband, controlled substances, or other items that are material to a criminal investigation to a target offender which is initiated, managed, overseen, or participated in by law enforcement personnel with the knowledge of a confidential informant. See Florida Statute Section 914.28(2)(c).
Requirements for Using a Confidential Informant
Florida Statute Section 914.28(3) now provides certain requirements for a law enforcement agency that uses confidential informants including:
- informing any person who is requested to serve as a confidential informant that the law enforcement agency cannot promise inducements such as a grant of immunity, dropped or reduced charges, or reduced sentences or placement on probation in exchange for serving as a confidential informant; and
- informing any person who is requested to work as a confidential informant that the value of his or her assistance as a confidential informant and any effect that assistance may have on pending criminal matters can be determined only by the appropriate legal authority.
Training for the Use and Recruitment of Confidential Informants
Rachel’s Law requires the agency to 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.
Florida Statute Section 914.28(3) also requirements agencies that use and recruit confidential informants to train any personnel involved in the use or recruitment on the agency’s policies and procedures. Additionally, the agency is required to keep documentation demonstrating the date of such training.
The policies and procedures must state the:
- information that the law enforcement agency shall maintain concerning each confidential informant;
- general guidelines for handling confidential informants;
- process to advise a confidential informant of conditions, restrictions, and procedures associated with participating in the agency’s investigative or intelligence gathering activities;
- designated supervisory or command-level review and oversight in the use of a confidential informant;
- limits or restrictions on off-duty association or social relationships by agency personnel involved in investigative or intelligence gathering with confidential informants;
- guidelines to deactivate confidential informants, including guidelines for deactivating communications with confidential informants; and
- level of supervisory approval required before a juvenile is used as a confidential informant.
Determining Suitability to Act as a Confidential Informant
Under Florida Statute Section 914.28(3)-(5), a law enforcement agency that uses confidential informants shall establish policies and procedures to assess the suitability of using a person as a confidential informant by considering the minimum following factors:
- The person’s age and maturity;
- The risk the person poses to adversely affect a present or potential investigation or prosecution;
- The effect upon agency efforts that the disclosure of the person’s cooperation in the community may have;
- Whether the person is a substance abuser or has a history of substance abuse or is in a court-supervised drug treatment program;
- The 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;
- Whether the person has shown any indication of emotional instability, unreliability, or of furnishing false information;
- 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.
A law enforcement agency that uses confidential informants shall establish written security procedures that, at a minimum:
- Provide for the secured retention of any records related to the law enforcement agency’s confidential sources, including access to files identifying the identity of confidential sources;
- Limit availability to records relating to confidential informants to those within the law enforcement agency or law enforcement community having a need to know or review those records, or to those whose access has been required by court process or order;
- Require notation of each person who accesses such records and the date that the records are accessed;
- Provide for review and oversight by the law enforcement agency to ensure that the security procedures are followed; and
- Define the process by which records concerning a confidential informant may be lawfully destroyed.
Any state or local law enforcement agency that uses confidential informants is required to perform a periodic review of actual agency confidential informant practices to ensure conformity with the agency’s policies and procedures and this section.
This article was last updated on Thursday, April 26, 2018.