Salah v. People

550 P.3d 698

2024 CO 54

Abdullahi SALAH, Petitioner,

v.The PEOPLE of the State of Colorado, Respondent,

Supreme Court Case No. 23SC4

Supreme Court of Colorado.

June 24, 2024

Certiorari to the Colorado Court of Appeals, Court of Appeals Case No. 19CA180

Attorneys for Petitioner: Megan A. Ring, Public Defender John Plimpton, Deputy Public Defender, Denver, Colorado

Attorneys for Respondent: Philip J. Weiser, Attorney General Katharine Gillespie, Senior. Assistant Attorney General, Denver, Colorado

Attorney for Amicus Curiae Colorado Office of Respondent Parents’ Counsel: Zaven T. Saroyan, Denver, Colorado

En Banc

JUSTICE BERKENKOTTER delivered the Opinion of the Court, in which CHIEF JUSTICE BOATRIGHT, JUSTICE MÁRQUEZ, JUSTICE HOOD, JUSTICE GABRIEL, JUSTICE HART, and JUSTICE SAMOUR joined.

JUSTICE BERKENKOTTER delivered the Opinion of the Court.

¶1 After a jury convicted Abdullahi Salah of sexually assaulting a fifteen-year-old girl, the trial court sentenced him to sex offender intensive supervision probation. The court included, as conditions of his probation, provisions that prohibited Salah from contacting or living with minor children, except for his own children, his minor-age siblings, and any child with whom he had a parental role. Salah’s probation was subsequently revoked, following a hearing, after his probation officer discovered that Salah was living with his adult sister and her infant son.

¶2 Salah appealed, contending that the probation conditions prohibiting him from contacting or living with his sister and nephew violated his constitutional right to associate with family members. More precisely, he argued that the right to familial association automatically extends to all members of a probationer’s biological family and that a blood relationship is dispositive of constitutional protection. He further asserted that the court erred by failing to make specific findings identifying the compelling circumstances that justified the imposition of these conditions.

¶3 In a unanimous, published decision, a division of the court of appeals rejected Salah’s argument that the scope of the right to familial association in this context is determined entirely by the existence of a blood relationship between a probationer and a minor child. The division further concluded that, because Salah did not present any evidence at his probation revocation hearing regarding his relationship with his nephew, the probation conditions didn’t violate his right to familial association and the trial court didn’t err by failing to make specific findings. People v. Salah, 2022 COA 134M2, ¶¶ 18, 22, 525 P.3d 298, 301–02.

¶4 We, too, reject Salah’s argument that a biological connection alone is dispositive of whether a probationer has a constitutional right to familial association in this context. Like most other courts that have addressed the parameters of sex offender probation conditions when a probationer asserts a right to familial association, we hold that whether a probation condition implicates a probationer’s constitutional right to familial association with an extended relative¹ depends, as a threshold matter, on whether the probationer demonstrates the nature of their relationship with the family member. See, e.g., Smith v. Org. of Foster Fams. for Equal. & Reform, 431 U.S. 816, 842–4, 97 S.Ct. 2094, 53 L.Ed.2d 14 (1977) ("[T]he importance of the familial relationship … stems from the emotional attachments that derive from the intimacy of daily association …. "); United States v. Pacheco-Donelson, 893 F.3d 757, 760 (10th Cir. 2018) (rejecting a probationer’s claim to familial association where he presented no evidence of a "close familial relationship between himself and [his] two foster brothers"). This threshold showing is necessary so that a trial court reviewing a claim of familial association can determine where on the spectrum of protection the relationship falls.

¶5 In the proceedings below, Salah didn’t present any evidence demonstrating the nature of his relationship with his nephew. Consequently, the trial court didn’t err by prohibiting Salah from contacting or living with his nephew or by failing to make specific findings identifying the compelling circumstances that justified the imposition of these restrictions. Accordingly, we affirm the division’s judgment.

I. Facts and Procedural History

¶6 In October 2017, Salah contacted the victim, a fifteen-year-old girl, via a social media app. A few days later, Salah picked the victim up from her home and drove her to a parking lot, where he sexually assaulted her and took photos of her breasts. Salah then dropped the victim off at an intersection near her home. Based on these events, a jury convicted Salah of second degree kidnapping, sexual assault, and two counts of sexual exploitation of a child.

¶7 The trial court sentenced Salah to concurrent terms of sex offender intensive supervision probation. In doing so, the court found that, while Salah didn’t "pose a threat to [his] own children," he nevertheless wouldn’t "be able to be around children." The court told Salah that he must "comply with additional terms and conditions of supervision for adult sex offenders," including two conditions that prohibited him from contacting or living with children under the age of eighteen, except for his siblings or children "with whom [he] ha[d] a parental role (for example, biological children, adoptive children, or step-children)."

¶8 Days later, after discovering during a home visit that Salah was living with his sister and infant nephew, a probation officer moved to revoke his probation. At the revocation hearing, defense counsel argued that Salah had a constitutional right "to be in contact with his sister’s young son, who is his nephew." Specifically, counsel asserted that two federal cases—United States v. Bums, 775 F.3d 1221 (10th Cir. 2014), and United States v. White, 782 F.3d 1118 (10th Cir. 2015)—extend the right to familial association "to other familial relationships where the probationer has some sort of parental like role." Counsel elicited testimony from Salah’s cousin that members of the Somali community, like Salah, "are expected to help other members of the Somali community." Counsel also argued, "I believe that in this particular community, in this particular family, Mr. Salah would have had a parent like role as it related to his young nephew who was in the house that the probation officer testified about."

¶9 The court acknowledged Salah’s cousin’s testimony about the dynamics within the Somali community. The court observed, however, that "there is no evidence before this Court that as it relates to the defendant and his nephew, that there is a parental like role." The court further noted that the "White case made it clear that it would have been the defendant’s burden to demonstrate the nature of the relationship to the children in question." Thus, because Salah was living with his minor nephew and he didn’t present any evidence that he had a parental role with his nephew, the court found that Salah violated the terms of his probation. The court later revoked Salah’s probation, re-imposed the original probation sentences with the same conditions, and added a ninety-day jail sentence.

¶10 Salah appealed, contending that the right to familial association extends to all blood relatives and that the trial court erred by failing to make specific findings regarding the compelling circumstances justifying the imposition of the probation conditions prohibiting him from contacting and living with his nephew. In support, he relied on People v. Cooley, 2020 COA 101, ¶ 36, 469 P.3d 1219, 1226, which held that "conditions of probation that infringe on a defendant’s fundamental constitutional rights must be supported by a specific finding that (1) compelling circumstances require their imposition and (2) less restrictive means are not available."

¶11 In a unanimous, published decision, a division of the court of appeals rejected Salah’s contention. Salah, ¶ 18, 525 P.3d at 301. The division emphasized that the defendant in Cooley claimed a right to associate with his own children, whereas Salah claimed a right to associate with his nephew. Id. at ¶ 15, 525 P.3d at 301. To the division, this difference mattered because "restrictions on a defendant’s contact with [their] own children are subject to stricter scrutiny." Id. (alteration in original) (quoting United States v. Bear, 769 F.3d 1221, 1229 (10th Cir. 2014)). It is for this reason, the division concluded, that, "[i]n the context of a parent-child relationship, the right to familial association is fundamental and can be infringed only upon a finding of compelling circumstances." Id. at ¶ 15, 525 P.3d at 301.

¶12 The division acknowledged that the United States Supreme Court has "recognized familial rights in persons other than parents," but it emphasized that "the parameters of that interest are less well-defined." Id. at ¶ 16, 525 P.3d at 301 (quoting White, 782 F.3d at 1139). And the division observed that "a non-custodial [individual’s] right to familial association is entitled to less constitutional protection." Id. (alteration in original) (quoting White, 782 F.3d at 1140). Moreover, the division explained, a "probationer bears the burden of demonstrating the nature of his relationship with a family member who isn’t his child," and more specifically, " ‘the degree to which that relationship resembles a parental one.’" Id. at ¶ 17, 525 P.3d at 301 (quoting White, 782 F.3d at 1140). Relying on White, the division concluded that a defendant’s "right to familial association should be afforded ‘a level of constitutional protection directly proportional to the significance of that liberty interest.’ " Id. (quoting White, 782 F.3d at 1141).

¶13 Applying these principles, the division determined that "Cooley’s requirement of a ‘compelling circumstances’ finding before imposing a condition that infringes on a [sex...