People v. Abdullahi Salah

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.

SUMMARY
November 23, 2022

2022COA134

No. 2019CA0180, People v. Salah — Criminal Law —
Sentencing — Probation; Constitutional Law — Right of
Familial Association

A division of the court of appeals holds that a condition of

probation that barred a probationer from contact with children

other than his own did not violate the probationer’s constitutional

right of familial association. The probationer had been convicted of

sexual exploitation of a child and violated the condition of his

probation by residing with his sister and minor nephew. The

probationer did not allege or establish any parental role as to his

nephew, which makes this case different from People v. Cooley,

2020 COA 101, on which the probationer relies.
COLORADO COURT OF APPEALS 2022COA134

Court of Appeals No. 19CA0180
Adams County District Court No. 17CR4392
Honorable Roberto Ramirez, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Abdullahi Salah,

Defendant-Appellant.

ORDERS AFFIRMED

Division P
Opinion by JUDGE J. JONES
Martinez* and Graham*, JJ., concur

Announced November 23, 2022

Philip J. Weiser, Attorney General, Katharine Gillespie, Senior Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, John Plimpton, Lead Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2022.
¶1 Defendant, Abdullahi Salah, appeals the trial court’s order

revoking his sentences to sex offender intensive supervision

probation (SOISP) and the court’s order resentencing him to SOISP

with the same conditions. He contends that the two probation

conditions he was found to have violated infringe on his

constitutional right to familial association by prohibiting him from

contacting or living with a minor family member. Salah thus

challenges the revocation of his SOISP sentences based on his

violation of these conditions and the imposition of those same

conditions on his new SOISP sentences.

¶2 Because we conclude that the record doesn’t show that Salah’s

right to familial association was implicated, we affirm the trial

court’s orders revoking his SOISP sentences and re-imposing SOISP

with the same conditions.

I. Background

¶3 The evidence introduced at trial showed that Salah

electronically contacted and communicated with the then-fifteen-

year-old victim and that, on the evening in question, Salah picked

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up the victim from her home, drove her to a park, sexually

assaulted her, and took pictures of her breasts.

¶4 A jury found Salah guilty of second degree kidnapping, sexual

assault, and two counts of sexual exploitation of a child. The trial

court sentenced him to concurrent terms on SOISP. The court said

that, as part of his probation, Salah could not be around children,

but the court also found that he didn’t pose a threat to his own

children. As now relevant, Salah’s probation conditions 3 and 5

prohibited him from contacting or residing with a child under the

age of eighteen, except for “children who [we]re [his] siblings or with

whom [he] ha[d] a parental role (for example, biological children,

adoptive children, or step-children).”

¶5 Salah’s probation officer later filed a complaint to revoke

Salah’s SOISP sentences, alleging, among other things, that he had

violated conditions 3 and 5 by living with his sister and her infant

child. In a “Special Report,” the officer said that, at his probation

intake appointment, Salah “asked if he could have contact with the

children belonging to his children’s mother, but because he d[id]

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not have a parental role with these minors, he was told he could

not.”

¶6 At a revocation hearing, the probation officer testified that she

had told Salah that he could not have contact with children who

weren’t his biological children or children as to whom he had no

“parental rights.” She also said that, after she discovered Salah

living in a residence with his infant nephew during a home visit,

Salah said he thought he could live with family members. She told

him he could have contact only with his own children. On cross-

examination, the probation officer clarified that Salah could have

contact with his minor siblings, his minor children, his adopted

minor children, or “any children for whom he acted as a father

figure.”

¶7 In contesting the revocation complaint, defense counsel

argued, in part, that Salah has a constitutional right to familial

association with his nephew and that conditions 3 and 5 violate this

right. Counsel noted that a federal case held that a court can’t

prohibit a probationer from having contact with his minor biological

children and siblings and asserted that “the underlying rationale [of

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that case] does argue for an extension of that exception to other

familial relationships where the probationer has some sort of

parental like role.”

¶8 Defense counsel claimed 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.” Counsel also argued that

the underlying facts of Salah’s conviction didn’t suggest that he

poses a risk to his infant nephew.

¶9 In rejecting Salah’s constitutional challenge to conditions 3

and 5, the trial court considered Salah’s cousin’s testimony

regarding Salah’s family but determined that “there [wa]s no

evidence before this Court that as it relates to [Salah] and his

nephew, that there [wa]s a parental like role.” The court noted that

the applicable federal cases “made it clear that it would have been

[Salah’s] burden to demonstrate the nature of the relationship to

the children in question.”

¶ 10 The trial court then found that Salah had violated conditions 3

and 5, revoked his SOISP sentences, and re-imposed the original

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SOISP sentences with the same conditions, plus a ninety-day jail

sentence.

II. Analysis

¶ 11 On appeal, Salah doesn’t reassert his argument that a

probationer’s constitutional right to familial association should

extend to a minor family member with whom he has a parental role

and that he had such a parental role with his nephew. In fact, he

appears to concede that he doesn’t have a parental role with his

nephew.

¶ 12 Instead, Salah asserts that the trial court failed to make

certain required findings before imposing conditions 3 and 5,

which, he says, infringe on his right to reside with his sister and

nephew. He makes this claim without regard to whether he has any

particular relationship with them and claims this right is implied in

his right of familial association. He relies on People v. Cooley, 2020

COA 101, in which a division of this court concluded that

“conditions of probation that infringe on a defendant’s fundamental

constitutional rights must be supported by a specific finding that (1)

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compelling circumstances require their imposition and (2) less

restrictive means are not available.” Id. at ¶ 36.

¶ 13 But Cooley is distinguishable from this case in two pertinent

ways.

¶ 14 First, the defendant in Cooley was convicted of sexually

assaulting an adult victim, while Salah was convicted of sexually

assaulting a minor. Id. at ¶ 2. “When a defendant has committed a

sex offense against children or other vulnerable victims, general

restrictions on contact with children ordinarily do not involve a

greater deprivation of liberty than reasonably necessary.” United

States v. Bear, 769 F.3d 1221, 1229 (10th Cir. 2014).

¶ 15 Second, Cooley involved the imposition of SOISP conditions

that assertedly infringed on the probationer’s right to familial

association with his own children. Cooley, ¶¶ 1, 5, 7. In 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 ¶¶ 22, 25, 28, 30, 36; see also

United States v. Burns, 775 F.3d 1221, 1222-25 (10th Cir. 2014);

United States v. Lonjose, 663 F.3d 1292, 1302-03 (10th Cir. 2011);

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United States v. Smith, 606 F.3d 1270, 1283-84 (10th Cir. 2010);

United States v. Voelker, 489 F.3d 139, 153-55 (3d Cir. 2007);

United States v. Davis, 452 F.3d 991, 994-96 (8th Cir. 2006); United

States v. Loy, 237 F.3d 251, 269 (3d Cir. 2001); United States v.

Edgin, 92 F.3d 1044, 1049 (10th Cir. 1996); People v. Forsythe, 43

P.3d 652, 653-55 (Colo. App. 2001). Indeed, “restrictions on a

defendant’s contact with [their] own children are subject to stricter

scrutiny.” Bear, 769 F.3d at 1229.

¶ 16 But, “[a]lthough the [United States] Supreme Court has . . .

recognized familial rights in persons other than parents, the

parameters of that interest are less well-defined.” United States v.

White, 782 F.3d 1118, 1139 (10th Cir. 2015). While a probation

condition “may only infringe on the parental right to familial

association if there are compelling circumstances, a non-custodial

[individual’s] right to familial association is entitled to less

constitutional protection.” Id. at 1140.

¶ 17 The probationer bears the burden of demonstrating the nature

of his relationship with a family member who isn’t his child. Id.

Upon consideration of the nature of the relationship and “the degree

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to which that relationship resembles a parental one,” the

probationer’s right to familial association should be afforded “a level

of constitutional protection directly proportional to the significance

of that liberty interest.” Id. at 1140-41.

¶ 18 Accordingly, we conclude that Cooley’s requirement of a

“compelling circumstances” finding before imposing a condition that

infringes on a probationer’s right to familial association doesn’t

imply a right to live with family members without regard to the

nature of the relationship. See id. at 1141 (remanding the case for

the district court to enter “specific findings justifying any conditions

of supervised release that infringe on a protected right of familial

association” but requiring “express findings of compelling

circumstances” only “[i]f a parent-like right is impacted”); Bear, 769

F.3d at 1229 (“[S]pecial conditions that interfere with the [parental]

right of familial association can do so only in compelling

circumstances . . . .” (quoting Smith, 606 F.3d at 1284)); Trujillo v.

Bd. of Cnty. Comm’rs, 768 F.2d 1186, 1189 (10th Cir. 1985) (“[T]he

parental relationship may warrant the greatest degree of protection

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and require the state to demonstrate a more compelling interest to

justify an intrusion on that relationship . . . .”).

¶ 19 Melnick v. Raemisch, Civ. A. No. 19-cv-00154, 2021 WL

4133919 (D. Colo. Sept. 10, 2021), is more analogous to this case

than is Cooley. In that case, a parolee filed a federal civil action

challenging the constitutionality of conditions of his release from

prison on his Colorado sentence precluding contact with minor

family members, including his nephew. Id. at *1. In dismissing the

action, the federal district court concluded that the parole

conditions didn’t infringe on the parolee’s right to familial

association because he “ha[d] not alleged any type of parental or

custodial arrangement with his nephew or any other minors in his

family, and d[id] not describe his relationship with them.” Id. at

*11. The court also noted that “a sex offender[’s] contact with

children is generally not authorized absent a close familial

relationship, White, 782 F.3d at 1138-40, and [the parolee] ha[d]

not alleged any facts from which the Court c[ould] infer such a close

familial relationship with the minors.” Id. Finally, the court

determined that “[t]he prohibition on contact with minors furthers

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the legitimate interests of the state in rehabilitation and protecting

the public from sex offenders, particularly, vulnerable minors who

are more at risk”; that the parolee “ha[d] not plausibly pled

allegations from which the Court c[ould] infer that [the parole

conditions] d[id] not serve those interests”; and that, therefore, the

parolee’s “familial interest in associating with his nephew and other

minors in his family [wa]s outweighed by the state’s interest in

protecting health and safety.” Id. (footnote omitted).

¶ 20 United States v. Jenks, 714 F. App’x 894 (10th Cir. 2017), is

also instructive. The defendant challenged a parole condition that

restricted contact with his minor family members. Id. at 896-87,

898. In rejecting this challenge, the court concluded that, “[t]hough

[the defendant] might be able to assert a significant liberty interest

in the care, custody, and control of his own or other children with

whom he has a custodial relationship,” “[h]e d[id] not . . . cite any

authority supporting the idea that he ha[d] a significant liberty

interest in associating with any minor child to whom he is related,

regardless of custodial status or affinity” or that he had “a

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significant liberty interest in familial association with children with

whom he has no custodial relationship.” Id. at 898-99.

¶ 21 Lastly, in United States v. Pacheco-Donelson, 893 F.3d 757

(10th Cir. 2018), the defendant argued that a parole condition

infringed on his right to familial association because it precluded

him from associating with his two foster brothers. Id. at 758-59.

The court noted that, even assuming the right to familial

association could apply to foster siblings, “this theory would require

proof, for the constitutional protection of familial relationships

stems from ‘the emotional attachments that derive from the

intimacy of daily association.’” Id. at 760 (quoting Smith v. Org. of

Foster Fams. for Equal. & Reform, 431 U.S. 816, 844 (1977)); see

Smith, 431 U.S. at 844 (while a familial relationship also stems from

a “blood relationship,” such fact is not dispositive). In concluding

that the district court didn’t err by imposing the parole condition,

the court determined that the defendant “provided no evidence of a

close familial relationship between himself and the two foster

brothers.” Pacheco-Donelson, 893 F.3d at 760.

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¶ 22 In light of the above authority and the record, we conclude

that conditions 3 and 5 didn’t infringe on Salah’s right to familial

association. Salah admittedly had no parental or custodial role

with his nephew, and he otherwise failed to demonstrate the nature

of his relationship with his sister and nephew. See White, 782 F.3d

at 1139-41; see also Est. of B.I.C. v. Gillen, 710 F.3d 1168, 1175

(10th Cir. 2013) (When extending the due process right to familial

association to grandparents, “courts often consider whether the

grandparents are ‘custodial figure[s]’ or ‘acting in loco parentis.’”

(quoting Rees v. Off. of Child. & Youth, 744 F. Supp. 2d 434, 451

(W.D. Pa. 2010))); Johnson v. City of Cincinnati, 310 F.3d 484, 501

(6th Cir. 2002) (The plaintiff had a fundamental freedom of

association right to participate in the upbringing of her

grandchildren where she did more than visit and was “an active

participant in the lives and activities of her grandchildren.”).

III. Conclusion

¶ 23 The orders revoking Salah’s SOISP sentences and re-imposing

SOISP sentences are affirmed.

JUSTICE MARTINEZ and JUDGE GRAHAM concur.

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