State v. Blair – Sentencing/Probation



VS.                                                                  Criminal No.:  112476




COMES NOW the State of Maryland, by and through the State’s Attorney for Montgomery County, Maryland, and requests the following special condition as part of probation, as if and when the defendant is eligible for probation: THAT THE DEFENDANT HAVE NO CONTACT WITH KNOWN GANG MEMBERS.


On February 7, 2009, police responded to Rockville Billars for a stabbing that had just occurred. The victim had walked outside to use a cell phone when he was approached by three (3) black males. One of the suspects asked the victim if he was MS 13. The suspect identified himself as a Blood. One of the co-defendants was Mark Lowery. Lowery had My Space pages that identified himself as a Blood and indicated they were recruiting. Blair has been identified as a gang member by Rockville City Police. A possible theory is this was an initiation for Blair into the Villain Piru Bloods. Lowery has been identified as a member of the Villain Piru Bloods. Blair gave a statement that Bloods and Crips are united because of the large amount of MS 13 in the area.


            The State is asking the Court to impose a special condition of probation prohibiting the defendant from having contact with known gang members.


Though Maryland Courts have not spoken directly on the issue, several other jurisdictions have upheld conditions of probation that restrict a probationer’s right to associate with gang members or be involved in gang related activity. California expressly permits such restriction on a probationer’s right to freedom of association as long as the condition of probation extends the prohibition only to those persons that are known to the probationer to be members of a gang. See, In re J.G. No. F055698, 2009 WL 190036 (Cal. App. 5 Dist. Jan. 27, 2009); In re Justin S. No. B148299, (93 Cal. App. 4th 811, Nov. 6, 2001); In re Oscar Z. No. D045934, 2005 WL 2436184 (Cal. App. 4 Dist. Oct 3, 2005); In re Shenna K. No. S123980, (40 Cal. 4th 875, March 15, 2007); In re Tamekia J. No D043054, 2004 WL 1551604 (Cal. App. 4 Dist. July 12, 2004); People v. Garcia, No. F018987, (19 Cal. App 4th 97, Oct. 1, 1993).

 “No gang contact” conditions of probation have survived challenges based on vagueness and over breath, by one of two methods. Either 1) the courts have simply modified the condition of probation to include an express requirement of knowledge on the part of the probationer of the prohibited person’s gang affiliation, or 2) they have simply sustained the probationary condition on the grounds that knowledge of a prohibited person’s status as gang member would have to be implied, in order for the reading of the condition of probation to be fair. See, In re Marvin C. No. B182907, 2006 WL 1728904, (Cal. App. 2 Dist. June 26, 2006). See also, In re Justin S. at 816-17; In re Oscar Z. at *4; In re Shenna K at 892.


            In Maryland, conditions of probation may be imposed if they are “reasonable and have a rational basis.” See, Watson v. State, 17 Md.App 263 at 274 (1973); See also, Brown v. State, 80 Md.App. 187 at 198 (1989); Douglas v. State, 130 Md.App. 666 at 674 (2000); Smith v. State 80 Md.App. 371 at 376 (1989). Probationary conditions must also be “clear, definite and capable of being properly comprehended and understood, not only by the individual upon whom they are imposed, but also by those who are responsible for their enforcement.”  Watson at 274; See also, Haynes v. State, 26 Md.App. 43 at 52 (1975).

Maryland state courts have never dealt directly with prohibiting gang contact as a condition of probation, and case law discussing the validity of other special conditions of probation is sparse. But see, Douglas v. State, 103 Md.App. 666 (2000) (upholding no contact with victims); Sheppard v. State, 344 Md. 143 (1996) (prohibiting operation of a motor vehicle); Towers v. State, 92 Md.App. 183 (1992) (upholding condition that prohibited working in pharmacy); Turner v. State, 61 Md. App. 1 (1984) (requiring monetary payments as a condition of probation). The United States Court of Appeals for the Fourth Circuit, similarly has not ruled upon the validity of a “no gang contact” probation condition but held generally that “[p]robation conditions may seek to prevent reversion into a former crime-inducing life style by barring contact with old haunts and associates, even though the activities may be legal.”  See, United States v. Hendricks, 69 Fed.Appx. 592, 2003 WL 21470309 (C.A.4 Md. June 26, 2003).

Federal Case law in this area is similarly scarce; however The United States District Court for the District of Maryland, in an opinion by Judge Chasanow, did delineate a test for the validity of conditions of probation in federal court. See, United States v. Trainer, 265 F.Supp.2d 589 (2003). In that opinion Judge Chasanow held “[a] person who is on supervised release is subject to significant restrictions on liberty [and] [t]he sentencing court may impose ‘any…condition [of supervised release] that it considers to be appropriate [within certain parameters].’” (citation omitted). Id. at 591. The Court found that a condition of probation can restrict fundamental rights, such as freedom of association as long as it is “narrowly tailored and is directly related to deterring the defendant and protecting the public. Restrictions affecting constitutional rights are valid if directly related to advancing the individual’s rehabilitation and to protecting the public from recidivism.” Id. (internal quotations omitted). This case dealt with a white supremacist that was convicted of conspiracy to violate the rights of others by burning a cross. He was prohibited from having contact with other white supremacists while on probation. Though the condition of probation did not specifically deal with a criminal street gang, the Court sustained the no contact prohibition by noting that the crime was committed in a group, “where the collective action made the conduct much more dangerous.” Id. at 594.

California State Courts:

 Since Maryland state case law interpreting conditions of probation, especially those prohibiting contact with gang members is scarce, it may be helpful to examine how other states treat the matter.  The most extensive case law has been developed in California state courts, where the test for determining the validity of conditions of probation is similar to the test that Maryland and other courts use. See, People v. Lent,15 Cal. 3d 48 at 486 (1975) (holding that a condition of probation will not be held invalid unless it “has no relationship to the crime of which the offender was convicted, relates to conduct which is not in itself criminal, and requires or forbids conduct which is not reasonably related to future criminality.”). See Douglas, supra, at 674; People v. DiStefano,146 Misc 2d. 513 at 518 (1989); State v. Allen, 370 S.C. 88 at 99 (2006):

With regard specifically to a probation condition prohibiting association with a person with a criminal regard, courts generally have upheld such a condition on the ground it is related to the crime for which the offender was convicted, is intended to prevent future criminal conduct, or bears a reasonable relationship to an offender’s rehabilitation.

California courts of appeal, have sustained challenges to “no gang contact” conditions of probation in several instances, citing them as “essential element[s] of any probationary effort [for gang members] because it would insulate [gang members] from a source of temptation to continue to peruse a criminal lifestyle.” People v. Lopez, 66 Cal. App. 4th 615, 626 (1998). The Lopez Court went on to acknowledge that “[a]ssociation with gang members is the first step to involvement in gang activity . . .” and described such conditions as “rehabilitative.” Id. The Court had no qualms with limiting Lopez’s right to freedom of association while on probation, noting that “a probationary condition may impinge upon a constitutional right otherwise enjoyed by a probationer, who is ‘not entitled to the same degree of constitutional protection as other citizens.’” Id. at 624, citing People v. Peck, 52 Cal.App.4th 351, 362 (1996).

            The Court went on to detail that, the right to associate “may be restricted if reasonable necessary to accomplish the essential needs of the state and public order.” Id. at 627, citing Malone v. U.S., 502 F.2d 554, 557 (1974). The Justices were also unconcerned with whether or not the probationer’s crime was shown to have been gang related and followed the holdings of other jurisdictions that sustained the no contact condition, based on the rational that such a condition would “insure that Lopez would not be present at confrontational situations between rival gangs; [and that] hostility among different gangs is often an underlying cause of criminal activity.” Id. at 626. An additional condition of probation that Lopez not display any physical indicia of gang membership (such as clothing with gang colors) was also upheld as reasonable since it “removed from Lopez the visible reminders of his past gang connection.” Id.

            The California Court of Appeal for the First Circuit treated a challenge to a “no gang contact” condition of probation in much the same way. In People v. Torres, 2004 WL 1664862 Cal.App. 1 Dist. (2004), the probationer complained that barring him from association with known gang members violated his right to freedom of association and “placed him in a position where it might be impossible for him to avoid violating the probation condition.” Id. at *4. The court held that “[c]learly if appellant stops associating with gangs or known gang members, he is less likely to commit future crimes of this specific nature.” Id. Additionally the court stated “. . . the probation condition prohibiting appellant from associating with any known gang members or their associates was reasonably related to the purposes of rehabilitating him and preventing future gang-related criminality.” Id.

            Using the test set for in People v. Lent, The Court of Appeals for the Sixth District of California also upheld “no gang contact” conditions of probation, this time by inserting a knowledge requirement into a previously written probation contract.  People v. Rodriguez, 2004 WL 1398822 (Cal.App. 6 Dist. June 23, 2004). The amendment restricted the probationer’s interaction only with those people he knew to be members of a gang, instead of anyone known to the department of parole and probation to be gang involved.  Id. at *2. With this amendment, the condition was able to survive challenges of vagueness and overbreadth. Id. The Court rebuffed the probationer’s First Amendment claims that such a condition violated his right to freedom of association by invoking the California Supreme Court case People ex rel. Gallo v. Acuna, where the California Supreme Court held that the right to freedom of association “in a sense, protected by the First Amendment, does not extend to joining with others for the purpose of depriving third parties of their lawful rights.” See People ex rel. Gallo v. Acuna, 14 Cal.4th 1090, 1112 (2007). Further still, under the same rational, the court sustained a condition of probation that “[D]efendant shall not frequent areas of gang related activity . . . as directed by a probation officer Id. at *6. The Court found this condition to be narrowly tailored so as to pass constitutional muster because any questions the probationer had about where he could or could not visit could be answered by his probationer officer. Id. at *8.

In addition to interpreting conditions of probation,  The Court of Appeals for the Second District California upheld a finding of a violation of probation based on a lower court’s “no gang contact” condition of probation. See generally, People v. Rivera, 2004 WL 204996 (Cal.App. 2 Dist February 4, 2004). In Rivera, the judge included a condition of probation that the defendant “stay away from gangs,” and stated:

I want to make it clear to the defendant, whether he lives in the neighborhood or not, you have to find different people to be with. If the next time there’s even a report that he’s associating, and I’m going to be very clear about who they are and so forth, that if he is associating with them, that’s going to be a violation of probation. (emphasis in original)

Id. at *2. The court spoke directly to the defendant when it delineated conditions of probation, to include no contact with two named individuals and the additional condition that he have no contact with “any other member of the Toonerville gang or any other person that you know to be a member of a criminal street gang.” Id. (emphasis in original). Six months later the defendant returned to the court on a violation of the no gang contact provision when he was stopped in a motor vehicle with a known Toonerville gang member, three bandanas and a gun. Id. A search of defendant’s residence revealed various gang-related items, writings, memorial cards from a gang member’s funeral and gang graffiti, in the room of defendant’s brother-in-law. Id. at 2-3.

            At the violation of probation hearing the court heard from an officer who, in addition to testifying regarding his extensive qualifications and experience as a gang expert, testified regarding the structure of the Toonerville gang and about the method of operation of gangs in general. Id. The State put on evidence regarding the gang paraphernalia found in defendant’s brother-in-law’s room, in order to prove defendant’s knowledge that he was associating with a gang member. Despite the fact that defendant’s wife and father-in-law testified that they saw no indication that the individual in question was gang-involved, the violation of probation was sustained. Id. at *11.

Rivera also posed a challenge to the no contact condition of probation on the grounds that the State did not prove a sufficient association with the gang-involved person. The court rejected this argument too stating “[t]he trial judge made it abundantly clear at the time that . . . Rivera had to find different people to be with. . .  [and] emphasized ‘[Y]ou are not to have any contact with . . . any other member of the Toonerville gang.’”. Id. at *13 (emphasis in original). The court found that the defendant and the gang member were living down the hall from one another and that they saw each other and communicated; this was found to be ample basis for a violation.

The court was also unpersuaded by defendant’s argument that prohibiting him from associating with his brother-in-law violated his right to due process, since the gang member in question was related to the defendant. They noted “[Defendant] cites no authority holding that a felony probationer has the right to associate with a gang member, if that gang member happens to be related to him by marriage, to the contrary, as previously noted, restriction of the right of association is part of the criminal process.” Id. at *9.

In In re Marvin C. The Court of Appeals for the Second District California upheld a “no gang” contact condition of probation in a juvenile case and justified it as useful considering the specific mission of the juvenile justice system. They stated that Courts have”broad discretion in establishing conditions of probation in juvenile cases.” See In re Marvin, supra. The Court additionally held “juvenile conditions may be broader than those pertaining to adult offenders. This is because juveniles are deemed more in need of guidance and supervision than adults, and because a minor’s constitutional rights are more circumscribed.” In re Marvin, at *2. The Court continued “[c]ourts may restrict the places where minors may go and the people they may contact consistent with the rehabilitative goals of the juvenile law.” Id.  This Court addressed Respondent’s concerns that he could unknowingly violate the provision because it was vague and stated:

[The order] does not punish him for accidentally coming into contact with gang members. It applies only to associating with people he knows he may not contact. Because Marvin may not even associate with the Santana Locos gang, he knows he may not participates in its activities. Moreover, the order reasonably anticipates that his parents and probation officer will answer questions he has about this restriction.

Id. at *3.  The Court’s ruling implies a knowledge requirement to these nocontact conditions of probation and notes that courts should be able to be trusted to rule on such provisions with a sense of fair play. The California Courts of Appeal has been reluctant to see these conditions fail for challenges based on vagueness and instead, has made the decision to trust that the courts will not punish individuals for innocent treatment, nor will they unreasonably interpret such conditions. See Id.

Other Jurisdictions

Other jurisdictions interpret no-contact conditions of probation in much the same way as does California. The Supreme Court of Hawai’i [sic] upheld a condition of probation that the defendant must “refrain from the company of people of questionable character,” noting that, “”[i]t is also clear that the court has the power to restrict the probationer’s association with groups that would palpably encourage him to repeat his criminal conduct.” See, State v. Martinez, 59 Haw. 366, 372 (1978). In justifying their decision, the Court conceded that these conditions could not validly be imposed upon persons who had not been convicted of a crime but noted that a criminal probationer is not so similarly situated to raise such objections. In addressing challenges of application of no contact conditions and notice to the probationer of a potential violation, the Court stated: 

[w]ho are persons of ‘questionable character’ may be difficult to determine in all circumstances but should present appellant with no difficulty in at least some situations. The term has a commonly understood meaning which clearly embraces persons who by reason of prior conviction or reputation are generally regarded as engaged in criminal activities.

Id. at 373. This no-contact condition of probation, out of all conditions examined, is by far the most broad, and does not specifically contain a requirement of knowledge regarding the prohibited person’s status, yet the Supreme court of Hawai’i had no problem sustaining it as a valid condition of probation.

            The Supreme Court of South Carolina similarly interpreted and upheld a no-contact condition of probation that prohibited contact “with any person who has a criminal record.” See, State v. Allen, 370 S.C.88, 94 (2006). Even though the Allen and Martinez decisionsdo not specifically deal with “no gang contact” provisions, a “no gang contact” prohibition and a “no criminal association” prohibition are both susceptible to challenges on the grounds that the probationer may not have been able to immediately ascertain when the person that they’re associating with falls into either one of those categories. Since similar challenges could be mounted to both conditions, an examination of the courts’ treatment of such conditions is helpful.

 In reaching its decision, the South Carolina Supreme Court noted that over the years several criteria have been examined when ruling on the validity of conditions of probation, such as:

the condition is so unreasonable or overly broad that compliance is virtually impossible and the burden imposed on the probationer is greatly disproportionate to any rehabilitative function the condition might serve; (2) the condition has no relationship to the crime of which the offender was convicted; (3) the condition requires or forbids conduct which is not reasonably related to future criminality; (4) the conditions relates to conduct which is not in itself criminal unless the prohibited conduct is reasonably related to the crime of which the offender was convicted or to future criminality; (5) the conditions violates due process because it is overly broad or void for vagueness; or (6) the condition unnecessarily or excessively tramples upon First Amendment rights of free association.

Id. at 97.  Additionally, the Court cited in their analysis as persuasive authority, People v. Lopez, from the California Court of Appeals, agreeing that no-contact conditions of probation, gang related or otherwise, were sustainable as long as they retained a knowledge requirement.” Id. at 98. In doing so, the Court recognized that many state and federal courts alike have recognized the validity of such conditions as they are “related to the crime for which the offender was convicted, [is] intended to prevent future criminal conduct, [and] bears a reasonable relationship to an offender’s rehabilitation.” Id. at 99. In supporting their holding the Court went on to detail the specificity and closeness of an association that the State would have to prove to warrant a violation.

A probationer’s “association” with a person who has a criminal record must entail more than incidental or unknowing encounters before the probationer will be found in violation of the condition. “Association” generally has been interpreted to mean intentional, knowing and substantial contact, or the development of a significant or meaningful relationship, with a convicted criminal over a substantial period of time.

Id. at 100. See also, Alessi v. Thomas, 620 F.Supp. 589, 593 (S.D.N.Y. 1985) (finding that over forty phone calls accepted by probationer from person with whom he was prohibiting from having contact was an extensive association worthy of a violation of no association clause.); Arciniega v. Freeman, 490 U.S. 4 (1971), (holding that prohibition of association with ex-convicts, did not apply to incidental contacts between ex-convicts while working on a job for a common employer.); U.S. v. Bonanno, 425 F.Supp. 743 (N.D.Cal. 1978) (mentioning that prohibition of association within the context of a condition of probation “must be more than incidental contact.”).

            The Court delineated in detail what a violation of probation would entail:

the State must present sufficient evidence, which may be direct or circumstantial, that a probationer intentionally had knowing and substantial contact with a person who has a criminal record, or developed a significant or meaningful relationship with that person over a substantial period of time. The probationer then has the opportunity to demonstrate a lack of knowledge of the person’s criminal record, a lack of any association with the person or an association which amounts to no more than an unknowing or incidental contact, or offer an explanation for the forbidden contact sufficient to excuse it.

Id. at 101. The South Carolina Supreme Court’s rational could easily be applied or extended to encompass a “no gang contact” condition of probation which Maryland courts could interpret in much the same way. As long as the State could prove more than an incidental contact with a person that was known to the probationer to be gang involved, much like other jurisdictions, the probation condition could be similarly sustained.

The Court of Appeals of Kansas has also taken on the task of interpreting the validity of “no gang contact” conditions of probation. See generally, State v Larios-Alba, 196 P.3d 451, 2008 WL 4966469 (Kan.App. Nov. 21, 2008). In this case the State asked that the defendant be prohibited from associating with anyone involved with gangs, and from going to certain locations known for gang activity. Id. at *5. The Court of Appeals took note that the lower court adopted the State’s recommended gang conditions of probation in their entirety because the lower court believed that there were inherit problems with gang affiliation “including the difficulty of severing ties with other gang members.” Id. The court, in sustaining the challenge to “no gang contact” conditions of probation, upheld the finding that “it was the court’s obligation to assist Larios-Alba ‘in making sure he doesn’t want to have any further involvement in gangs.’” Id.


            Though Maryland courts have not spoken directly on the issue of the validity of a “no gang” contact condition of probation, other jurisdictions have taken it upon themselves to examine such conditions and have time and time again found them to be valid. Such conditions are well within the Court’s right to sustain even over freedom of association objections, as they are reasonably related to the goals of the criminal and juvenile justice systems and are consistent with the goals of probationary sentences. These conditions help prevent the probationer from re-entering a criminal lifestyle, guide a probationer towards making better decisions and associating with more favorable groups of individuals and bear a reasonable relationship to rehabilitation. Consistently, the courts of several jurisdictions have refused to strike these conditions of probation and have instead found ways to rehabilitate them so as to make them pass constitutional muster. One way courts have found to sustain these conditions is by implying within them an element of scienter, the other is to specifically rewrite the condition, so as to remove all doubt. At no point have any of these courts specifically refused to levy the condition of probation on the grounds that the court thought it would be unenforceable, in fact, quite the opposite has been true. In several of these decisions, the courts have gone out of their way to state what burden the prosecution would have to meet to successfully sustain a violation of probation and in some instances, even detailing to the defendant what he or she would have to do to refute the State’s evidence. 

            Each jurisdiction has recognized the importance of maintaining control over the places that a probationer may visit and the persons with whom he can associate. These Courts agree that gang-related conditions of probation are an integral part of maintaining public safety and are just as beneficial to the defendant or respondent as they are to the community.  As relevant case law shows, a “no gang contact” condition of probation does not violate the constraints of the First Amendment, and should be sustained.

                                                                        Respectfully Submitted,