Relates to confidential informants; defines terms; requires the law enforcement agencies which use confidential informants to establish policies and procedures to assess the suitability of using a person as a confidential informant; makes related provisions.
TITLE OF BILL: An act to amend the criminal procedure law, in relation to confidential informants
PURPOSE OR GENERAL IDEA OF BILL:
To amend the criminal procedure law in relation to confidential informants by defining confidential informants: by imposing restrictions on who and who may not be a confidential informant; by regulating the use of 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 considering 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 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 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 availability 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.
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.
None specifically noted.
The first of November next succeeding the date on which it shall have become a
STATE OF NEW YORK ________________________________________________________________________ 5732--A 2013-2014 Regular Sessions IN SENATE June 10, 2013 ___________Introduced by Sen. PERKINS -- read twice and ordered printed, and when printed to be committed to the Committee on Codes -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee AN ACT to amend the criminal procedure law, in relation to confidential informants THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. The criminal procedure law is amended by adding a new section 60.23 to read as follows: S 60.23 RULES OF EVIDENCE; CONFIDENTIAL INFORMANTS. 1. AS USED IN THIS SECTION, THE FOLLOWING TERMS SHALL HAVE THE FOLLOWING MEANINGS: (A) "CONFIDENTIAL INFORMANT" MEANS A PERSON WHO COOPERATES WITH A LAW ENFORCEMENT AGENCY CONFIDENTIALLY IN ORDER TO PROTECT THE PERSON OR THE AGENCY'S INTELLIGENCE GATHERING OR INVESTIGATIVE EFFORTS AND: (I) SEEKS TO AVOID ARREST OR PROSECUTION FOR A CRIME, OR MITIGATE PUNISHMENT FOR A CRIME IN WHICH A SENTENCE WILL BE OR HAS BEEN IMPOSED; AND (II) IS ABLE, BY REASON OF HIS OR HER FAMILIARITY OR CLOSE ASSOCIATION WITH SUSPECTED CRIMINALS, TO: (A) MAKE A CONTROLLED BUY OR CONTROLLED SALE OF CONTRABAND, CONTROLLED SUBSTANCES, OR OTHER ITEMS THAT ARE MATERIAL TO A CRIMINAL INVESTI- GATION; (B) SUPPLY REGULAR OR CONSTANT INFORMATION ABOUT SUSPECTED OR ACTUAL CRIMINAL ACTIVITIES TO A LAW ENFORCEMENT AGENCY; OR (C) OTHERWISE PROVIDE INFORMATION IMPORTANT TO ONGOING CRIMINAL INTEL- LIGENCE GATHERING OR CRIMINAL INVESTIGATIVE EFFORTS. (B) "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 PARTIC-EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD02188-08-3 S. 5732--A 2
IPATED IN BY LAW ENFORCEMENT PERSONNEL WITH THE KNOWLEDGE OF A CONFIDEN- TIAL INFORMANT. (C) "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 PARTIC- IPATED IN BY LAW ENFORCEMENT PERSONNEL WITH THE KNOWLEDGE OF A CONFIDEN- TIAL INFORMANT. (D) "LAW ENFORCEMENT AGENCY" MEANS ANY AGENCY HAVING A PRIMARY MISSION OF PREVENTING AND DETECTING CRIME AND THE ENFORCEMENT OF THE PENAL, CRIMINAL, TRAFFIC, OR HIGHWAY LAWS OF THE STATE AND THAT IN FURTHERANCE OF THAT PRIMARY MISSION EMPLOYS LAW ENFORCEMENT OFFICERS. (E) "TARGET OFFENDER" MEANS THE PERSON SUSPECTED BY LAW ENFORCEMENT PERSONNEL TO BE IMPLICATED IN CRIMINAL ACTS BY THE ACTIVITIES OF A CONFIDENTIAL INFORMANT. 2. A LAW ENFORCEMENT AGENCY THAT USES CONFIDENTIAL INFORMANTS SHALL: (A) INFORM EACH PERSON WHO IS REQUESTED TO SERVE AS A CONFIDENTIAL INFORMANT THAT THE 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. (B) INFORM EACH PERSON WHO IS REQUESTED TO SERVE 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. (C) 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. IF THE PERSON IS NOT REPRESENTED BY LEGAL COUNSEL AT THE TIME OF THE SOLICITATION, THE LAW ENFORCEMENT AGENCY MUST ADVISE THE PERSON OF HIS OR HER RIGHT TO CONSULT WITH LEGAL COUNSEL BEFORE ENTERING INTO THE SUBSTANTIAL ASSISTANCE AGREEMENT. (D) ENSURE THAT ALL PERSONNEL WHO ARE INVOLVED IN THE USE OR RECRUIT- MENT OF CONFIDENTIAL INFORMANTS ARE TRAINED IN THE LAW ENFORCEMENT AGEN- CY'S POLICIES AND PROCEDURES. THE AGENCY SHALL KEEP DOCUMENTATION DEMON- STRATING THE DATE OF SUCH TRAINING. (E) 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. 3. A LAW ENFORCEMENT AGENCY THAT USES CONFIDENTIAL INFORMANTS SHALL ESTABLISH POLICIES AND PROCEDURES ADDRESSING THE RECRUITMENT, CONTROL AND USE OF CONFIDENTIAL INFORMANTS. THE POLICIES AND PROCEDURES SHALL STATE THE: (A) INFORMATION THAT THE LAW ENFORCEMENT AGENCY SHALL MAINTAIN CONCERNING EACH CONFIDENTIAL INFORMANT; (B) GENERAL GUIDELINES FOR HANDLING CONFIDENTIAL INFORMANTS; (C) PROCESS TO ADVISE A CONFIDENTIAL INFORMANT OF CONDITIONS, RESTRICTIONS, AND PROCEDURES ASSOCIATED WITH PARTICIPATING IN THE AGEN- CY'S INVESTIGATIVE OR INTELLIGENCE GATHERING ACTIVITIES; (D) DESIGNATED SUPERVISORY OR COMMAND LEVEL REVIEW AND OVERSIGHT IN THE USE OF A CONFIDENTIAL INFORMANT; (E) LIMITS OR RESTRICTIONS ON OFF-DUTY ASSOCIATION OR SOCIAL RELATION- SHIPS BY AGENCY PERSONNEL INVOLVED IN INVESTIGATIVE OR INTELLIGENCE GATHERING WITH CONFIDENTIAL INFORMANTS; (F) GUIDELINES TO DEACTIVATE CONFIDENTIAL INFORMANTS, INCLUDING GUIDE- LINES FOR DEACTIVATING COMMUNICATIONS WITH CONFIDENTIAL INFORMANTS; ANDS. 5732--A 3
(G) LEVEL OF SUPERVISORY APPROVAL REQUIRED BEFORE A JUVENILE IS USED AS A CONFIDENTIAL INFORMANT. 4. 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: (A) THE PERSON'S AGE, MATURITY, YOUTHFUL OFFENDER STATUS, AND MENTAL CAPACITY IF SUCH PERSON IS MENTALLY DISABLED AS SUCH TERM IS DEFINED IN SUBDIVISION THREE OF SECTION 1.03 OF THE MENTAL HYGIENE LAW; (B) THE RISK THE PERSON POSES TO ADVERSELY AFFECT A PRESENT OR POTEN- TIAL INVESTIGATION OR PROSECUTION; (C) THE EFFECT UPON AGENCY EFFORTS THAT THE DISCLOSURE OF THE PERSON'S COOPERATION IN THE COMMUNITY MAY HAVE; (D) WHETHER THE PERSON IS A SUBSTANCE ABUSER OR HAS A HISTORY OF SUBSTANCE ABUSE OR IS IN A COURT-SUPERVISED DRUG TREATMENT PROGRAM; (E) 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; (F) WHETHER THE PERSON HAS SHOWN ANY INDICATION OF EMOTIONAL INSTABIL- ITY, UNRELIABILITY OR OF FURNISHING FALSE INFORMATION; (G) THE PERSON'S CRIMINAL HISTORY OR PRIOR CRIMINAL RECORD; AND (H) WHETHER THE USE OF THE PERSON IS IMPORTANT TO OR VITAL TO THE SUCCESS OF AN INVESTIGATION. 5. A LAW ENFORCEMENT AGENCY THAT USES CONFIDENTIAL INFORMANTS SHALL ESTABLISH WRITTEN SECURITY PROCEDURES THAT, AT A MINIMUM: (A) 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; (B) 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; (C) REQUIRE NOTATION OF EACH PERSON WHO ACCESSES SUCH RECORDS AND THE DATE THAT THE RECORDS ARE ACCESSED; (D) PROVIDE FOR REVIEW AND OVERSIGHT BY THE LAW ENFORCEMENT AGENCY TO ENSURE THAT THE SECURITY PROCEDURES ARE FOLLOWED; AND (E) DEFINE THE PROCESS BY WHICH RECORDS CONCERNING A CONFIDENTIAL INFORMANT MAY BE LAWFULLY DESTROYED. 6. A STATE OR LOCAL LAW ENFORCEMENT AGENCY THAT USES CONFIDENTIAL INFORMANTS SHALL PERFORM A PERIODIC REVIEW OF ACTUAL AGENCY CONFIDENTIAL INFORMANT PRACTICES TO ENSURE CONFORMITY WITH THE AGENCY'S POLICIES AND PROCEDURES AND THIS SECTION. 7. THE PROVISIONS OF THIS SECTION AND POLICIES AND PROCEDURES ADOPTED PURSUANT TO THIS SECTION DO 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, ENFORCE- ABLE AT LAW BY A DEFENDANT IN A CRIMINAL PROCEEDING. S 2. This act shall take effect on the first of November next succeed- ing the date on which it shall have become a law.