CHAPTER 29-29.5 CONFIDENTIAL INFORMANTS 29-29.5-01. Definitions

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"Benefit" means any of the following conferred on a confidential informant or a third party: a

Leniency in a criminal case or probation or parole matter, including a decision whether to arrest or charge an offense or to limit the number or severity of charges; Sentence reduction of any kind or amount; or A favorable sentencing or bond recommendation

b

c

"Confidential informant" means an individual who cooperates with a law enforcement agency and: a

Is willing to attempt a controlled buy or controlled sale or agrees to surreptitiously record a target offender; and Seeks or is offered a benefit

b

"Controlled buy" means the purchase or attempted purchase of contraband, controlled substances, or other items material to a criminal investigation while under supervision or direction of law enforcement

"Controlled sale" means the sale or attempted sale of contraband, controlled substances, or other items material to a criminal investigation while under supervision or direction of enforcement

"Informant agreement" means a written agreement describing the rights and obligations of a confidential informant and law enforcement agency

"Law enforcement agency" means an agency authorized by law to enforce the law and to conduct or engage in investigations or prosecutions for violations of the law

"Target offender" means an individual suspected of a violation of the law, whose identity is known or unknown, and who is the focus of an informant agreement

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29-29.5-02. Limitation on use of juvenile confidential informants

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A law enforcement agency may not use a juvenile fifteen years of age or younger as a confidential informant

A juvenile over the age of fifteen, but under the age of eighteen, may not be used as a confidential informant unless: The juvenile is married; a

b

The juvenile is emancipated; The juvenile is serving in the active duty armed forces; or c

The juvenile is subject to criminal charges; and d

(1) There are no other reasonable avenues to obtain evidence of the crime being investigated and the risk of harm to the juvenile is minimal; (2) The juvenile's custodial parent or guardian has signed the informant agreement; and (3) The juvenile has consulted with legal counsel

29-29.5-03. Limitation on use of campus police

A law enforcement officer employed under section 15-10-17 may not enter an informant agreement with a student enrolled in an institution under the control of the state board of higher education

29-29.5-04. Law enforcement confidential informant training and guidelines

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After July 1, 2018, a law enforcement agency may not use a confidential informant unless the law enforcement agency is trained in the use of confidential informants in a training course approved by the attorney general

a

Training must occur at least once every three years, and must establish that the law enforcement agency has trained all personnel who are involved in the use or Page No. 1 2

b

recruitment of confidential informants in the law enforcement agency's policies and procedures in a manner consistent with the peace officer standards and training requirements

The law enforcement agency shall document the date and scope of all training along with all law enforcement personnel trained

The peace officers standards and training board shall adopt rules for the use of confidential informants which at a minimum: a

Assign the consideration of the preservation of the safety of a confidential informant

Execute reasonable protective measures for a confidential informant

Establish guidelines for the training and briefing of confidential informants

b

c

d. Restrict off-duty association or social relationships by law enforcement agency personnel with confidential informants

Establish procedures to deactivate confidential informants which maintain the safety and anonymity of confidential informants

Establish a process to evaluate and report the criminal history and propensity for violence of any target offenders

Establish written security procedures protecting the identity of a confidential informant

Establish written procedures relating to the use of a paid confidential informant

e

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g

h

29-29.5-05. Written agreement required

Except for court proceedings, a law enforcement agency may use a confidential informant only with a written agreement executed by the confidential informant and the law enforcement agency. An agreement for use of a confidential informant must be in writing, and include: 1

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The confidential informant's right to remain silent, the right to speak with legal counsel at any time, and the right to cease working as a confidential informant; A statement of the benefit, which will be recommended upon substantial compliance with the informant agreement; A statement that an absolute guarantee or promise may not be made to the confidential informant other than law enforcement will truthfully report cooperation; A statement of the inherent risk associated with acting as a confidential informant; 4

5. Confidential informant responsibilities, including testifying truthfully if called as a witness in a court proceeding; A written waiver of right to counsel which must be executed separately and attached to the informant agreement, signed by the confidential informant and a law enforcement officer, and include language stating that consulting legal counsel at any time will not invalidate the agreement; The parameters of the agreement, detailing the anticipated number of buys, sales, acts, or the duration of service; A description of any penalty for violating the terms of the written agreement, including any additional criminal charges; A warning that sexual relations with an intended target of a police investigation is a violation of the agreement and may be a violation of the law; A statement that money or property loaned or entrusted to the confidential informant by law enforcement may not be used for personal use and must be accounted for at all times; and Specification of any known crimes of violence committed by a target offender

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29-29.5-06. Death of a confidential informant

Upon the death of a confidential informant, the supervising law enforcement agency shall withdraw from the investigation of the death of its confidential informant. The supervising law enforcement agency promptly shall notify the attorney general of its withdrawal from the investigation, and the attorney general shall authorize an independent law enforcement agency investigation

Page No. 2 29-29.5-07. Reporting violations of this chapter

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An individual may report a suspected violation of this chapter to the appropriate law enforcement agency administration. The law enforcement agency shall investigate any reported violation within twenty days from receiving the complaint and, within forty-five days from receiving the complaint, make a written determination on whether a violation occurred. Upon completion, the law enforcement agency shall forward the written report to the individual who filed the initial complaint and to the peace officer standards and training board for review. An individual who filed a report for a suspected violation may seek additional remedies from the peace officer standards and training board

A licensed peace officer or a prosecutor who reasonably believes a law enforcement officer or a law enforcement agency has violated this chapter shall file a written report with the peace officer standards and training board

29-29.5-08. Disposition of cases involving confidential informants

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An informant agreement may be presented to the court at the time of sentencing. A court shall give consideration at sentencing to a confidential informant who has substantially complied with an informant agreement

After consideration of an informant agreement, a court may defer imposition of sentence or suspend a portion of a minimum mandatory sentence when a confidential informant has substantially complied with an informant agreement

If necessary to protect a confidential informant or the integrity of an ongoing investigation, a court may direct submission of sentencing memoranda in writing under seal when sentencing or deferring imposition of sentence of a confidential informant

If necessary to protect a confidential informant or the integrity of an investigation, a court may dispense with reporting departure from a mandatory sentence under subsection 3 of section 12.1-32-03

This section does not prohibit disposition of cases by deferral of prosecution with or without court approval

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