Florida Senate - 2018                             CS for SB 1220
       
       
        
       By the Committee on Criminal Justice; and Senator Brandes
       
       
       
       
       
       591-02131-18                                          20181220c1
    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         900.05Recording 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 robbery.
   59         17. Carjacking.
   60         (d) “Place of detention” means a police station, sheriff’s
   61  office, correctional facility, prisoner holding facility, or
   62  other governmental facility where an individual may be held in
   63  connection with a criminal charge that has been or may be filed
   64  against the individual.
   65         (e) “Statement” means a communication that is oral,
   66  written, electronic, nonverbal, or in sign language.
   67         (2)(a) A custodial interrogation at a place of detention,
   68  including the giving of a required warning, the advisement of
   69  the rights of the individual being questioned, and the waiver of
   70  any rights by the individual, must be electronically recorded in
   71  its entirety if the interrogation is related to a covered
   72  offense.
   73         (b) If a law enforcement officer conducts a custodial
   74  interrogation at a place of detention without electronically
   75  recording the interrogation, the officer shall prepare a written
   76  report explaining the reason for his or her noncompliance with
   77  this section and summarizing the custodial interrogation process
   78  and the individual’s statements.
   79         (c) As soon as practicable, a law enforcement officer who
   80  conducts a custodial interrogation at a place other than a place
   81  of detention shall prepare a written report explaining the
   82  decision to interrogate at that place and summarizing the
   83  custodial interrogation process and the individual’s statements
   84  made at that place.
   85         (d) Paragraph (a) does not apply:
   86         1. If an unforeseen equipment malfunction prevents
   87  recording the custodial interrogation in its entirety;
   88         2. If a suspect refuses to participate in a custodial
   89  interrogation if his or her statements are electronically
   90  recorded;
   91         3. Due to equipment operator error;
   92         4. If the statement is made spontaneously and not in
   93  response to a custodial interrogation question;
   94         5. If a statement is made after questioning that is
   95  routinely asked during the processing of the arrest of a
   96  suspect;
   97         6. If the custodial interrogation occurs when no law
   98  enforcement officer participating in the interrogation has
   99  knowledge of facts and circumstances that would lead an officer
  100  to reasonably believe that the individual being interrogated may
  101  have committed a covered offense;
  102         7. If the law enforcement officer conducting the custodial
  103  interrogation reasonably believes that electronic recording
  104  would jeopardize the safety of the officer, individual being
  105  interrogated, or others; or
  106         8. If the custodial interrogation is conducted outside of
  107  the state.
  108         (3) Unless a court finds that one or more of the
  109  circumstances specified in paragraph (2)(d) apply, the court
  110  shall consider a law enforcement officer’s failure to make an
  111  electronic recording of all or part of a custodial interrogation
  112  in determining whether a statement made during the interrogation
  113  is admissible. If the court admits into evidence a statement
  114  made during a custodial interrogation that was not
  115  electronically recorded as required under paragraph (2)(a), the
  116  court must, upon request of the defendant, give cautionary
  117  instructions to the jury regarding the law enforcement officer’s
  118  failure to comply.
  119         (4) A law enforcement agency in this state which has
  120  enforced rules adopted pursuant to this section which are
  121  reasonably designed to ensure compliance with the requirements
  122  of this section is not subject to civil liability for damages
  123  arising from a violation of this section. This section does not
  124  create a cause of action against a law enforcement officer.
  125         Section 2. This act shall take effect July 1, 2018.