author: BRYAN, Judge.

text:
    ALABAMA DEPARTMENT OF PUBLIC SAFETY v. Leon Albert PRINCE.
    2080866.
    Court of Civil Appeals of Alabama.
    Oct. 2, 2009.
    Troy King, atty. gen., and Winfield J. Sinclair, asst. atty. gen., and Peter J. Smyczek, special deputy atty. gen., for appellant.
    James E. Wilson, Jr., Montgomery, for appellee.
   BRYAN, Judge.

The Alabama Department of Public Safety (“the Department”) appeals from a judgment of the Montgomery Circuit Court reversing an administrative order finding Leon Albert Prince to be subject to the Community Notification Act, § 15-20-20 et seq., Ala.Code 1975 (“the CNA”). We reverse and remand.

In 1991, Prince was convicted of carnal knowledge of a girl less than 12 years old, in violation of § 398, Title 14, Ala.Code 1940 (Recomp.1958). Prince was incarcerated in state prison, and he was released from incarceration in November 2006. In February 2007, the Department notified Prince by letter that he is not subject to the CNA. However, in December 2007, the Department notified Prince by letter that, upon further review of his file, he is indeed subject to the CNA.

Prince sought administrative review of the Department’s decision that he is subject to the CNA. That review was governed by the Alabama Administrative Procedure Act, § 41-22-1 et seq., Ala.Code 1975 (“the AAPA”). The administrative review constituted a contested case under the AAPA. See § 41-22-3(3), Ala.Code 1975 (defining a “contested case,” in part, as “[a] proceeding ... in which the legal rights, duties, or privileges of a party are required by law to be determined by an agency after an opportunity for hearing”). Typically, that review would have been conducted by an administrative law judge (“ALJ”) working in the administrative hearings division of the Office of the Attorney General. However, because the attorney general decided to personally represent the Department in Prince’s case, all the ALJs in the administrative hearings division of the Office of the Attorney General recused themselves. In January 2008, Jack Curtis, general counsel for the Department, sent a letter to Julia Weller, an ALJ employed by the Alabama Department of Personnel, asking Weller to hear Prince’s administrative review. The letter to Weller stated, in pertinent part: “We are requesting on behalf of the Attorney General’s office, who will be presenting this case[,] that you ... preside over the due process hearing for [Prince].” Weller agreed to preside over Prince’s case.

Two days before the administrative hearing was held, Prince filed a motion seeking Weller’s recusal as the ALJ in his case. In his motion, Prince asserted that Weller “is subject to the authority, direction and discretion of the Attorney General.” Therefore, Prince argued, Weller was disqualified from hearing his case pursuant to § 41-22-18(a), Ala.Code 1975, which provides, in pertinent part: “No individual who participates in the making of any proposed order or final decision in a contested case shall .... be subject to the authority, direction or discretion of any person who has prosecuted or advocated in connection with that contested case.... ” Weller denied Prince’s motion seeking re-cusal on the grounds that it had been untimely filed and that she was not employed by the Office of the Attorney General. Weller subsequently presided over Prince’s contested-case hearing. Following the hearing, Weller issued an order upholding the Department’s decision that Prince is subject to the CNA.

Prince appealed the order to the circuit court, pursuant to § 41-22-20, Ala.Code 1975. Prince filed in the circuit court a motion seeking judicial review of the denial by Weller of Prince’s motion for recusal. In that motion, Prince sought an order determining that the hearing conducted before Weller had violated § 41-22-18(a) and had denied him due process under both the Alabama- Constitution and the United States Constitution. In response to Prince’s motion, the Department submitted Curtis’s affidavit. In his affidavit, Curtis testified that, as general counsel for the Department, he oversees all legal matters affecting the Department. Curtis stated that, after all the ALJs who would have typically heard a case such as Prince’s had recused themselves, Curtis learned that Weller had agreed to hear Prince’s case. Curtis stated that he did not recall from whom he had learned that information. Curtis testified that, as “a matter of course,” he then wrote the letter to Weller requesting that she conduct Prince’s hearing. He stated that he did not recall anyone in the Office of the Attorney General asking him to write the letter to Weller.

The Department also submitted the affidavit of Alice Ann Byrne, general counsel for the Alabama Department of Personnel, in response to Prince’s motion for recusal. In her affidavit, Byrne testified, in pertinent part:

“In January of 2008, due to the recusal [of all the ALJs working in the administrative hearings division of the Office of the Attorney General], I was contacted by the Department ... inquiring] about the appropriate procedure for appointing an [ALJ] to hear a case concerning the [CNA]. I informed [the Department] that they could hire an outside lawyer through contract, or send a request to our Chief Administrative Law Judge, ... Weller[,] who, if she were available, would request approval from the State Personnel Director to handle the case.
“... [0]n January 23, 2008, a letter from Jack Curtis, General Counsel of the Department ..., was sent to ... Weller requesting that she serve as the ALJ on the case. On January 25, 2008, State Personnel Director Jackie Graham approved the request....”

Byrne testified that, at the time Weller presided over Prince’s case, Weller “was employed by the State Personnel Department and was not subject to the direction, authority, or control of the Office of the Attorney General.”

In June 2009, the circuit court entered a judgment determining that Prince’s due-process rights had been violated by Weller’s hearing his case. Therefore, the circuit court’s judgment concluded that Weller should have recused herself from Prince’s case, and, on that ground, it reversed the order issued by Weller upholding the Department’s decision that Prince is subject to the CNA. Accordingly, the circuit court’s judgment did not address the substantive issue of whether Prince is indeed subject to the CNA. The Department subsequently filed an appeal to this court, pursuant to § 41-22-20, Ala.Code 1975.

Based on the circuit court’s finding that Prince’s right to due process was violated by Weller’s nonrecusal, that court apparently reversed Weller’s order under the authority of § 41 — 22—20(k)(l), Ala. Code 1975, which permits a circuit court to reverse an agency action made in violation of constitutional provisions. “This court reviews a circuit court’s judgment without a presumption of correctness because the circuit court is in no better position to review an agency’s decision than this court. Clark v. Fancher, 662 So.2d 258, 261 (Ala.Civ.App.1994).” Alabama Bd. of Nursing v. Peterson, 976 So.2d 1028, 1033 (Ala.Civ.App.2007). “[T]here is no presumption of correctness afforded to [an administrative decision maker’s] legal conclusions or its application of the law to the facts.” Medical Licensure Comm’n of Alabama v. Herrera, 918 So.2d 918, 926 (Ala.Civ.App.2005).

On appeal, the Department first argues that the circuit court erred in concluding that Prince’s right to due process had been violated by Weller’s failure to recuse herself from his case. The Department argues that Prince did not establish that his right to due process had been violated because, the Department says, Prince did not establish that Weller had actual bias in this case. Conversely, Prince, citing Caperton v. A.T. Massey Coal Co., — U.S. —, 129 S.Ct. 2252, 173 L.Ed.2d 1208 (2009), argues that a showing of actual bias is not required to establish a violation of due process in this case. In Caperton, the United States Supreme Court stated that “there are objective standards that require recusal when ‘the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable.’ Withrow v. Larkin, 421 U.S. 35, 47, 95 S.Ct. 1456, 43 L.Ed.2d 712 (1975).” — U.S. at -, 129 S.Ct. at 2257. We find that, under either the “actual bias” standard argued by the Department or the objective standard focusing on the “probability of actual bias” argued by Prince, Prince has failed to establish that his right to due process was violated in this case.

The United States Supreme Court has discussed the application of due process in the general context of a judge’s qualifications to hear a case:

“[M]ost questions concerning a judge’s qualifications to hear a case are not constitutional ones, because the Due Process Clause of the Fourteenth Amendment establishes a constitutional floor, not a uniform standard. Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 828 (1986). Instead, these questions are, in most cases, answered by common law, statute, or the professional standards of the bench and bar. See, e.g., Aetna, id., at 820-821; Tumey v. Ohio, 273 U.S. 510, 523 (1927); 28 U.S.C. §§ 144, 455; ABA Code of Judicial Conduct, Canon 3C(l)(a) (1980). But the floor established by the Due Process Clause clearly requires a ‘fair trial in a fair tribunal,’ Withrow v. Larkin, 421 U.S. 35, 46 (1975), before a judge with no actual bias against the defendant or interest in the outcome of his particular case. See, e.g., Aetna, supra, at 821-822; Tumey, supra, at 523.”

Bracy v. Gramley, 520 U.S. 899, 904-05, 117 S.Ct. 1793, 138 L.Ed.2d 97 (1997).

The Department argues that, in the specific context of an administrative hearing, Prince must establish actual bias by Weller in order to establish a violation of due process. The Department’s position regarding the “actual bias” standard is explained in Bunke v. Alabama Board of Nursing, 871 F.Supp. 1437, 1439 (M.D.Ala.1994):

“ ‘[I]t is well settled in Alabama that due process must be observed by all boards as well as courts.’ [Delavan v. Board of Dental Exam’rs of Alabama, 620 So.2d 13, 16 (Ala.Civ.App.1993) ]. It is also well established that ‘[a]t a minimum, due process assures notice and a meaningful opportunity to be heard before a right or an interest is forfeited.’ Johnson v. U.S.D.A., 734 F.2d 774, 782 (11th Cir.1984) (citing Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 901, 47 L.Ed.2d 18 (1976)).... The courts have also noted that the requirement of a hearing is no guarantee of due process where the presiding officer is not neutral. As stated in Johnson, ‘[a] fair hearing requires an impartial arbiter.’ Johnson, 734 F.2d at 782, see also, Gibson v. Berryhill, 411 U.S. 564, 578, 93 S.Ct. 1689, 1697, 36 L.Ed.2d 488 (1973).
“Having set forth the importance of guaranteeing due process in administrative procedures, though, courts have also noted that while these hearings may be quasi-judicial, ‘[b]road discretion must be afforded in non-judicial administrative settings.’ Delavan, 620 So.2d at 16. This is especially so in cases such as this where the decisions of an administrative body such as the Nursing Board, are subject to judicial review. § 41-22-20(a)[, Ala.Code 1975], Smith v. Organ. of Foster Families for Equality and Reform, 431 U.S. 816, 97 S.Ct. 2094, 53 L.Ed.2d 14 (1977).
“Courts have held ... that it is the plaintiffs burden in [cases regarding whether a hearing officer should be disqualified on due-process grounds] to show actual bias on the part of the hearing officer. Burney v. Polk Comm. College, 728 F.2d 1374, 1378 n. 11 (11th Cir.1984); Evers v. Brd. of Med. Examiners, 516 So.2d 650, 654 (Ala.Civ.App.1987), appeal dismissed 486 U.S. 1001, 108 S.Ct. 1723, 100 L.Ed.2d 188 (1988). Absent a showing of bias, the officer is presumed to be impartial. Schweiker v. Mc[Cl]ure, 456 U.S. 188, 195, 102 S.Ct. 1665, 1669, 72 L.Ed.2d 1 (1982), Johnson, 734 F.2d at 783, Black v. City of Auburn, 857 F.Supp. 1540, 1547 (M.D.Ala.1994). Bias is most readily apparent where the hearing officer has a pecuniary interest in the outcome of the matter. See, e.g., Gibson, 411 U.S. at 578, 93 S.Ct. at 1697.”

In this case, there is no evidence of actual bias by Weller against Prince. The circuit court’s judgment does not cite any alleged actual bias. Prince does not seem to argue that the record on appeal contains any evidence indicating that Weller was actually biased against him. Applying the “actual bias” standard advocated by the Department and explained in Bunke to Prince’s administrative proceeding, Prince did not establish that Weller’s failure to recuse herself violated his right to due process.

Prince, however, argues that Weller’s failure to recuse herself violated his right to due process under the standard set forth by the Supreme Court in Caperton, supra. In Caperton, a jury in West Virginia returned a verdict against A.T. Massey Coal Company and its affiliates (collectively “Massey”) and in favor of Hugh Caperton and others (collectively “Caperton”). The jury awarded Caperton $50 million in damages. — U.S. at -, 129 S.Ct. at 2257. The Supreme Court recited the facts of Caperton:

“Don Blankenship is Massey’s chairman, chief executive officer, and president. After the verdict but before the appeal, West Virginia held its 2004 judicial elections. Knowing the Supreme Court of Appeals of West Virginia would consider the appeal in the case, Blankenship decided to support an attorney who sought to replace Justice McGraw. Justice McGraw was a candidate for reelection to that court. The attorney who sought to replace him was Brent Benjamin.
“In addition to contributing the $1,000 statutory maximum to Benjamin’s campaign committee, Blankenship donated almost $2.5 million to ‘And For The Sake Of The Kids,’ a political organization formed under 26 U.S.C. § 527. The § 527 organization opposed McGraw and supported Benjamin. Blankenship’s donations accounted for more than two-thirds of the total funds it raised. This was not all. Blankenship spent, in addition, just over $500,000 on independent expenditures- — for direct mailings and letters soliciting donations as well as television and newspaper advertisements — ‘ “to support ... Brent Benjamin.” ’
“To provide some perspective, Blankenship’s $3 million in contributions were more than the total amount spent by all other Benjamin supporters and three times the amount spent by Benjamin’s own committee. Caperton contends that Blankenship spent $1 million more than the total amount spent by the campaign committees of both candidates combined.
“Benjamin won. He received 382,036 votes (53.3%), and McGraw received 334,301 votes (46.7%).”

- U.S. at -, 129 S.Ct. at 2257 (citations to the record omitted).

After Benjamin was elected, Caperton moved to disqualify him from considering Massey’s appeal, asserting a due-process violation and a violation of the West Virginia Code of Judicial Conduct. Justice Benjamin denied Caperton’s motion. — U.S. at -, 129 S.Ct. at 2257. The Supreme Court of Appeals of West Virginia subsequently granted review of the judgment entered on the jury verdict rendered against Massey. That court reversed the judgment entered on the jury verdict by a 3-2 vote, with Justice Benjamin voting with the majority. - U.S. at -, 129 S.Ct. at 2258.

The United States Supreme Court in Caperton identified two circumstances in which that Court had previously required a judge’s recusal on due-process grounds: cases in which a judge has a financial interest, — U.S. at -, 129 S.Ct. at 2260, and certain types of cases involving criminal contempt. — U.S. at -, 129 S.Ct. at 2261-62. The Supreme Court stated that “[tjhese are circumstances ‘in which experience teaches that the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable.’ ” — U.S. at -, 129 S.Ct. at 2259 (quoting Withrow v. Larkin, 421 U.S. 35, 47, 95 S.Ct. 1456, 43 L.Ed.2d 712 (1975)). Under such circumstances, the Supreme Court noted, “[t]he inquiry is an objective one. The Court asks not whether the judge is actually, subjectively biased, but whether the average judge in his position is ‘likely to be neutral, or whether there is an unconstitutional ‘potential for bias.’ ” - U.S. at -, 129 S.Ct. at 2262.

In Caperton, the Supreme Court applied those principles “in the context of judicial elections” to determine if Caperton’s right to due process had been violated by Justice Benjamin’s failure to recuse himself. - U.S. at -, 129 S.Ct. at 2262. The Supreme Court continued:

“The difficulties of inquiring into actual bias, and the fact that the inquiry is often a private one, simply underscore the need for objective rules. Otherwise there may be no adequate protection against a judge who simply misreads or misapprehends the real motives at work in deciding the case. The judge’s own inquiry into actual bias, then, is not one that the law can easily superintend or review, though actual bias, if disclosed, no doubt would be grounds for appropriate relief. In lieu of exclusive reliance on that personal inquiry, or on appellate review of the judge’s determination respecting actual bias, the Due Process Clause has been implemented by objective standards that do not require proof of actual bias. See Tumey [v. Ohio], 273 U.S. [510,] 532, 47 S.Ct. 437 [ (1927) ]; Mayberry [v. Pennsylvania], 400 U.S. [455,] 465-466, 91 S.Ct. 499 [(1971)]; [Aetna Life Ins. Co. v.] Lavoie, 475 U.S. [813,] 825, 106 S.Ct. 1580[ (1986) ]. In defining these standards the Court has asked whether, ‘under a realistic appraisal of psychological tendencies and human weakness,’ the interest ‘poses such a risk of actual bias or prejudgment that the practice must be forbidden if the guarantee of due process is to be adequately implemented.’ Withrow [v. Larkin], 421 U.S., [35,] 47, 95 S.Ct. 1456 [ (1975) ].”

— U.S. at -, 129 S.Ct. at 2263.

The Supreme Court then stated that

“there is a serious risk of actual bias— based on objective and reasonable perceptions — when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge’s election campaign when the case was pending or imminent. The inquiry centers on the contribution’s relative size in comparison to the total amount of money contributed to the campaign, the total amount spent in the election, and the apparent effect such contribution had on the outcome of the election.”

- U.S. at -, 129 S.Ct. at 2263-64.

The Supreme Court concluded that “Blankenship’s campaign contributions— compared to the total amount contributed to the campaign, as well as the total amount spent in the election' — had a significant and disproportionate influence on the electoral outcome.” — U.S. at -, 129 S.Ct. at 2264. In determining that Caper-ton’s right to due process had been violated by Justice Benjamin’s failing to recuse himself, the Court stated that “the risk that Blankenship’s influence engendered actual bias is sufficiently substantial that it ‘must be forbidden if the guarantee of due process is to be adequately implemented.’ ” — U.S. at ——, 129 S.Ct. at 2264 (quoting Withrow, 421 U.S. at 47, 95 S.Ct. 1456).

As Chief Justice Roberts noted in his dissent in Caperton, “it is unclear whether the new probability of bias standard [articulated by the Court’s majority in Caperton] is somehow limited to financial support in judicial elections, or applies to judicial recusal questions more generally.” — U.S. -, 129 S.Ct. at 2269 (Roberts, C.J., dissenting). It is unclear whether the “probability of bias” standard discussed in Caperton would apply to ALJs presiding over state administrative proceedings, the situation in this case. However, assuming, without deciding, that that standard applies here, it is clear that the facts of this case, when objectively viewed in light of “a realistic appraisal of psychological tendencies and human weaknesses,” fall short of those facts needed to establish “ ‘a risk of actual bias or prejudgment’ ” requiring Weller’s recusal on due-process grounds. — U.S. at -, 129 S.Ct. at 2263 (quoting Withrow, 421 U.S. at 47, 95 S.Ct. 1456).

In Caperton, the Supreme Court noted that Caperton was “an exceptional case” that presented “extreme facts.” — U.S. at -, -, 129 S.Ct. at 2263, 2265. The Court then cautioned that “Application of the constitutional standard implicated in this case will ... be confined to rare instances.” — U.S. at -, 129 S.Ct. at 2267. The facts of this case are not the “extreme facts” of Caperton. In Prince’s contested case, all the ALJs who would have typically heard a case such as his recused themselves because the attorney general had decided to personally represent the Department in the case. Consequently, Curtis, general counsel for the Department, wrote a letter to Weller, requesting, “on behalf of the Attorney General’s office,” that Weller hear Prince’s case. The undisputed evidence in this case indicates that Curtis wrote the letter “as a matter of course” and that he did not recall being asked by anyone from the Office of the Attorney General to write the letter. Comparing these relatively innocuous facts to the “extreme facts” in Caper-ton, it is evident that Prince has not established a probability of actual bias that is too high to be constitutionally tolerable. This case is simply not the “rare instance” in which due process demands that a judge or decision maker be disqualified from a case. Accordingly, we conclude that the circuit court erred in reversing Weller’s order on the ground that her failure to recuse herself violated Prince’s right to due process.

Prince argues that, regardless of whether his constitutional right to due process was violated, we may affirm the circuit court’s judgment because, he says, § 41-22-18(a), Ala.Code 1975, required Weller to recuse herself from his case. Section 41-22-18(a) provides, in pertinent part: “No individual who participates in the making of any proposed order or final decision in a contested case shall .... be subject to the authority, direction or discretion of any person who has prosecuted or advocated in connection with that contested case....” As noted, the attorney general personally represented the Department in Prince’s contested case before Weller. However, the record does not establish that Weller was “subject to the authority, direction or discretion” of the attorney general in this case. In her affidavit, Byrne testified that Weller “was employed by the State Personnel Department and was not subject to the direction, authority, or control of the Office of the Attorney General”; that testimony is not directly disputed. Weller, in denying Prince’s motion for recusal, stated that she was not employed by the Office of the Attorney General. Prince seems to argue that because in his letter Curtis asked, “on behalf of the Attorney General’s Office,” that Weller handle Prince’s case, Weller was then “subject to the authority, direction or discretion” of the attorney general. However, we do not read Curtis’s letter as establishing the necessary “authority, direction or discretion” required to implicate § 41-22-18(a), especially in light of Byrne’s undisputed testimony indicating that Weller did not work for the attorney general. Section 41-22-18(a) does not require Weller’s recusal in this case.

Accordingly, we reverse the judgment of the circuit court reversing Weller’s order determining that Prince is subject to the CNA, and we remand the case for further proceedings consistent with this opinion. We emphasize that Weller’s order remains in place pending the circuit court’s resolution of the substantive merits of Prince’s appeal to the circuit court, ie., whether Weller correctly determined that Prince is subject to the CNA.

REVERSED AND REMANDED.

THOMPSON, P.J., and PITTMAN and THOMAS, JJ., concur.

MOORE, J., concurs in the result, without writing.

      . The CNA was enacted in 1996 "to protect communities and their most vulnerable citizens, children, from the proven danger of recidivism by criminal sex offenders.” Salter v. State, 971 So.2d 31, 37 (Ala.Civ.App.2007).

      . Our supreme court "has consistently interpreted the due process guaranteed under the Alabama Constitution to be coextensive with the due process guaranteed under the United States Constitution.” Vista Land & Equip., L.L.C. v. Computer Programs & Sys., Inc., 953 So.2d 1170, 1174 (Ala.2006).


source: Caselaw Access Project

license: Public Domain

text:
    GENERAL ELECTRIC COMPANY v. Mary Ann BAGGETT, as surviving dependent spouse of Charles Baggett.
    2080324.
    Court of Civil Appeals of Alabama.
    Oct. 9, 2009.

      William L. Middleton and Heather N. Hudson of Eyster, Key, Tubb, Roth, Middleton & Adams, LLP, Decatur, for appellant.
    John P. Burbach and Travis S. Jackson of Sirote & Permutt, P.C., Huntsville, for appellee.
   BRYAN, Judge.

General Electric Company appeals from a judgment awarding workers’ compensation benefits to Mary Ann Baggett, as the surviving dependent spouse of Charles Baggett. We affirm.

In August 2003, Mr. Baggett sued his employer, General Electric, seeking workers’ compensation benefits for injuries to his left ankle and left knee suffered in April 2001. Following a trial, the trial court entered an amended judgment determining that Mr. Baggett was permanently and totally disabled as a result of his work-related left-leg injury.

General Electric appealed the judgment to this court. See General Elec. Co. v. Baggett, 1 So.3d 1015 (Ala.Civ.App.2007) (“General Electric”). On April 24, 2007, while the appeal was pending, Mr. Baggett died. It is undisputed that Mr. Baggett’s work-related injury did not proximately cause his death.

In the initial appeal, General Electric argued, among other things, that the trial court had erred by treating Mr. Baggett’s left-leg injury as an injury to the body as a whole, rather than as an injury to a scheduled member under § 25-5-57(a)(3), Ala. Code 1975. Id. at 1017. This court agreed, concluding that the trial court had erred in awarding compensation for Mr. Baggett’s injury outside the compensation schedule established in § 25-5-57(a)(3). Accordingly, on May 11, 2007, we reversed the trial court’s judgment and remanded the case. Id. at 1020.

Following the release of this court’s opinion in General Electric, Mrs. Baggett was substituted as a party in place of Mr. Baggett. On remand to the trial court, Mrs. Baggett argued that she is entitled to compensation benefits pursuant to § 25-5-57(a)(5), Ala.Code 1975, which permits a deceased employee’s surviving spouse or dependent children to recover benefits due the employee under certain conditions. General Electric, however, argued that Mrs. Baggett is not entitled to compensation benefits under § 25 — 5—57(a)(5). On November 26, 2008, the trial court, relying on its findings of fact made in its previous judgment of December 2005, entered a judgment determining that Mr. Baggett had sustained the total loss of the use of his left leg, a scheduled injury under § 25-5 — 57(a)(3), Ala.Code 1975. Therefore, the trial court awarded benefits to Mrs. Bag-gett for that injury for the period between May 15, 2004, and April 24, 2007, the date of Mr. Baggett’s death. The trial court also awarded Mrs. Baggett unpaid temporary-total-disability benefits that had accrued to Mr. Baggett. General Electric appealed.

Section 25-5-81(e), Ala.Code 1975, provides the standard of review in workers’ compensation cases:

“(1) In reviewing the standard of proof set forth herein and other legal issues, review by the Court of Civil Appeals shall be without a presumption of correctness.
“(2) In reviewing pure findings of fact, the finding of the circuit court shall not be reversed if that finding is supported by substantial evidence.”

Substantial evidence is “ ‘evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ ” Ex parte Trinity Indus., Inc., 680 So.2d 262, 268 (Ala.1996) (quoting West v. Founders Life Assurance Co. of Florida,, 547 So.2d 870, 871 (Ala.1989)).

On appeal, General Electric argues that the trial court erred in awarding Mrs. Baggett compensation benefits pursuant to § 25 — 5—57(a)(5), Ala.Code 1975. General Electric bases its argument on its interpretation of the use of the phrase “ascertained by the court” in that section. Section 25 — 5—57(a)(5) provides, in pertinent part:

“If an employee who sustains a permanent partial or permanent total disability, the degree of which has been agreed upon by the parties or has been ascertained by the court, and death results not proximately therefrom, the employee’s surviving spouse or dependent children or both shall be entitled to the balance of the payments which would have been due and payable to the worker, whether or not the decedent employee was receiving compensation for permanent total disability, not exceeding, however, the amount that would have been due the surviving spouse or dependent children or both if death had resulted proximately from an injury on account of which compensation is being paid to an employee.”

(Emphasis added.) It is undisputed that the parties have never agreed upon the degree of Mr. Baggett’s disability. Regarding whether the degree of disability was ascertained by the trial court, General Electric argues that, when this court reversed the trial court’s December 2005 judgment and remanded the case in General Electric, the degree of Mr. Baggett’s disability ceased to have been “ascertained” by the trial court at that point. Therefore, General Electric argues, Mrs. Baggett is not entitled to compensation benefits under § 25-5-57(a)(5).

Under § 25-5-57(a)(5),

“[w]hen the amount of disability benefits due the worker has been established, if the worker then dies from a cause unrelated to the work-related injury, his spouse and dependents are entitled to the benefits that would have been due to the worker. ‘Essentially, the spouse steps into the shoes of the worker, to continue receiving the benefits owed.’ ”

Drummond Co. v. Lolley, 786 So.2d 509, 512 (Ala.Civ.App.2000) (quoting Chatham Steel Corp. v. Shadinger, 768 So.2d 969 (Ala.Civ.App.1999), reversed on other grounds, Ex parte State Dep’t of Indus. Relations, 848 So.2d 251 (Ala.2002)).

If an employee dies from causes unrelated to the work-related injury before a judgment is entered determining the employee’s degree of disability, the employee’s surviving spouse or dependent children will not be entitled to compensation benefits under § 25-5-57(a)(5). Owens v. Ward, 49 Ala.App. 293, 271 So.2d 251 (Civ.App.1972). In Vann Express, Inc. v. Phillips, 539 So.2d 296 (Ala.Civ.App.1988), this court considered, in the context of § 25-5-57(a)(5), the effect of an employee’s death after a judgment had been entered determining the degree of disability but before the completion of the appeal process. In Vann Express, the trial court entered a judgment finding the employee to be totally and permanently disabled as a result of an injury caused by a work-related accident. 539 So.2d at 296-97. Following the entry of the judgment, the employee died from cancer, which was unrelated to the work injury. The employer subsequently appealed, arguing (1) that the trial court had erred by not addressing the employee’s cancer; (2) that the cancer was an “infirmity” as referred to in § 25-5-58, Ala.Code 1975, and, consequently, that the employee’s compensation should have been reduced; and (3) that the employee’s degree of disability had not been “ascertained by the court” and, consequently, that the employee’s surviving spouse and dependent children were not entitled to benefits under § 25-5-57(a)(5). Id. at 297. Regarding the employer’s argument concerning § 25-5-57(a)(5), this court stated:

“[The employer] maintains that [the phrase] ‘has been ascertained by the court’ means a final and nonappealable judgment or a judgment that has survived the appeals process must exist before a surviving spouse and/or dependent children may recover under section 25-5-57(a)(5).
“We disagree and choose to resolve this issue first. In the case of Harris v. Kimerling Truck & Parts Co., 504 So.2d 304 (Ala.Civ.App.1986), we discussed section 25-5-57(a)(5) and found that it ‘provides for payment to a spouse or dependent children only in the event the degree of disability has been agreed upon or judicially ascertained.’ However, we have never had occasion to define the phrase ‘judicially ascertained.’
“In interpreting a portion of the workers’] compensation statutes, we recognize:
“ ‘The Workers’] Compensation Act should be given a liberal construction to accomplish its beneficent purposes, and all reasonable doubts must be resolved in favor of the employee.’
“American Tennis Courts, Inc. v. Hinton, 378 So.2d 235 (Ala.Civ.App.1979) (citation omitted).
“Recognizing the aforementioned ‘beneficent purposes’ of workers’] compensation laws, we find the phrase ‘judicially ascertained’ to require that a court of competent jurisdiction consider the matter and then enter a final order setting forth the extent of the injured employee’s disability.
“We find that this particular statutory language reflects legislative intent to insure that disability determinations not be made following an employee’s death. We cannot agree with [the employer]’s position that section 25-5-57(a)(5) requires that a judgment be entered and that said judgment be taken through the appeals process before the disability can be considered ‘judicially ascertained.’
“[The employerj’s position would compromise the ‘beneficent purposes’ of the Workers’] Compensation Act. On the other hand, our interpretation would be more in keeping with this basic statutory goal.
“It is a settled rule of statutory construction that when attaching one meaning to a term as opposed to another we may properly examine the opposing outcomes for guidance in selecting the right interpretation. State v. Calumet & Hecla Consolidated Copper Co., 259 Ala. 225, 66 So.2d 726 (1953).
“Having engaged in this type of analysis, we find that our interpretation of the term ‘judicially ascertained’ produces the workable and fair result. Accordingly, we find that [the employee’s] spouse and/or dependent children are entitled to his disability benefits subject to the other restrictions of section 25-5-57(a)(5).”

Vann Express, 539 So.2d at 297-98.

The court in Vann Express then determined that the trial court had not erred in failing to address the employee’s cancer in its judgment and by not reducing the employee’s compensation due to his cancer. Id. at 298. Therefore, the employee’s surviving spouse and dependent children were entitled to the compensation that had been awarded to the employee in the trial court’s judgment.

Vann Express indicates that, if a trial court has entered a judgment determining the degree of disability before an employee’s death, the employee’s subsequent death from causes unrelated to the disability does not preclude the employee’s surviving spouse or dependent children from recovering benefits that would have been due the employee after an appeal. When Mr. Baggett died on April 24, 2007, the degree of his disability had been determined by the trial court, which had found him to be permanently and totally disabled in its December 2005 judgment. Accordingly, under § 25-5~57(a)(5), Mrs. Baggett “stepped into the shoes” of Mr. Baggett at that point and became entitled to receive whatever compensation Mr. Baggett would have received, pending the appeal. See Lolley, 786 So.2d at 512; and Vann Express, 539 So.2d at 297-98. On appeal, this court reversed the trial court’s judgment, concluding that Mr. Baggett’s injury should have been treated as a scheduled injury and, consequently, that the trial court had erred in awarding permanent-total-disability benefits. On remand, the trial court found that Mr. Baggett had lost the use of his left leg, a scheduled injury under § 25-5-57(a)(3), and it awarded benefits to Mrs. Baggett accordingly. In so doing, the trial court merely awarded to Mrs. Baggett the benefits that Mr. Bag-gett “would have been due,” § 25-5-57(a)(5), had he survived. Section 25-5-57(a)(5) does not preclude Mrs. Baggett from recovery in this case.

The requirement that an employee’s degree of disability be “ascertained by the court” in order for the employee’s surviving spouse and dependent children to recover benefits is surely intended to minimize problems of proving, after an employee’s death, the extent of disability. See generally Cole v. State Workmen’s Comp. Comm’r, 166 W.Va. 294, 273 S.E.2d 586 (1980) (canvassing the law regarding dependents’ rights to derivative workers’ compensation benefits in cases involving an employee’s death). In this case, we emphasize that an extensive record concerning the extent of Mr. Bag-gett’s injury was made before his death. As will be discussed below, the record made before Mr. Baggett’s death supports the trial court’s finding regarding the extent of his left-leg injury. This case does not present the problem of proof that § 25-5-57(a)(5) was designed to prevent.

General Electric also argues that, upon remand, the trial court erred in finding that Mr. Baggett had sustained the total loss of use of his left leg, a scheduled member under § 25-5-57(a)(3)a.l6., Ala. Code 1975. Section 25-5-57(a)(3)a. prescribes that compensation to an injured employee shall be equal to 66 2/3% of that employee’s average weekly earnings for a particular number of weeks, which corresponds to a particular member listed in the schedule. The “permanent and total loss of the use of a member” is considered the equivalent to the loss of that member. § 25-5-57(a)(3)d. An injury to a member that results in less than a total loss or total loss of use of the member is compensated “at the prescribed rate during that part of the time specified in the schedule for the total loss or total loss of use of the respective member which the extent of the injury to the member bears to its total loss.” § 25-5-57(a)(3)d.

The trial court, in determining the degree of the loss of use of an employee’s scheduled member, “is not bound by ... expert testimony and is free to make its own observations and determine the extent of disability.” B E & K Constr. Co. v. Hayes, 666 So.2d 1, 2 (Ala.Civ.App.1995). “[I]t is the duty of the trial court, which has the opportunity in an ore tenus proceeding, to observe the witnesses and their demeanor, and not the appellate court, to weigh the evidence presented.” Smith v. QHG of Dothan, Inc., 872 So.2d 197, 202 (Ala.Civ.App.2003). An employee’s “vocational disability ... is not an appropriate consideration in cases involving injuries to a scheduled member.” Swift Lumber, Inc. v. Ramer, 875 So.2d 1200, 1205 (Ala.Civ.App.2003).

In Dowdell v. Vermont American Corp., 808 So.2d 36 (Ala.Civ.App.2001), this court considered whether an employee who lost approximately one-half of the first phalanx of her index finger lost the use of her entire phalanx. This court stated: “[U]n-der Alabama law, compensation for the loss of only part of a phalanx may be awarded as if the entire phalanx had been lost where the remaining part of that phalanx is, for all practical pwtposes, not usable.” 808 So.2d at 39 (emphasis added). In Ex parte Puritan Baking Co., 208 Ala. 373, 375, 94 So. 347, 349 (1922), our supreme court stated: “[I]f there had been an amputation of a substantial portion of a phalange resulting in the stiffening of the joint so as, for all practical purposes, to destroy the use of that phalange to the workman, then, within the meaning of the statute, he has lost the same.... ” (Emphasis added.) Thus, an injury to a scheduled member that renders that member, “for all practical purposes,” useless constitutes the total loss of use of that member.

We find Pennsylvania’s workers’ compensation law to be instructive regarding what constitutes a loss of use for “all practical purposes.” Under Pennsylvania law, the test for determining whether an injury to a scheduled member constitutes the complete “loss” of that member is “whether the [employee] has suffered the permanent loss of use of the injured member for all practical intents and purposes.” Faulkner Cadillac v. Workers’ Comp. Appeal Bd. (Tinari), 831 A.2d 1248, 1254 (Pa.Commw.Ct.2003). Pennsylvania law provides for compensation for the loss of scheduled members regardless of whether the injury effects the injured employee’s earning capacity. Id. at 1252.

In United States Steel Corp. v. Workmen’s Compensation Appeal Board, 71 Pa. Commw. 354, 454 A.2d 1180 (1983), the appellate court affirmed an award of compensation for the loss of the use of an employee’s left leg. The employee in United States Steel had chronic disabling synovitis of his left ankle. 71 Pa. Commw. at 355, 454 A.2d at 1181. The appellate court in that case described the extent of the employee’s left-leg injury:

“The [employee] testified that he is unable to sit or stand for any great length of time, that walking short distances results in pain, that he cannot lift even the slightest amount of weight or engage in any athletic activity and that he cannot bend or squat without pain.
“... [The employee’s physician] stated that the [employee] could not depend upon his leg for strength, could not walk more than a couple of blocks, could not climb the stairs for more than a very short time, and could not use his left leg to function in a normal fashion in any normal activities. We note that the [employee's own testimony supports the result reached by [the employee’s physician] in that the [employee] testified that he has trouble standing, sitting, bending, lifting, getting into and out of cars, climbing the stairs and doing almost ‘any activity at all.’ ”

71 Pa. Commw. at 356-57, 454 A.2d at 1180.

In Faulkner Cadillac, supra, the court noted that “ ‘the loss of use for all practical intents and purposes’ does not mean that an injured body part is of absolutely no use whatsoever.” 831 A.2d at 1254. In that case, the court affirmed an order finding that a chemical-burn injury to an employee’s hands constituted the total loss of use of the hands “for all intents and purposes.” Id. at 1255. The order was supported by evidence indicating the employee’s “inability to perform numerous routine tasks associated with the activities of daily living.” Id. In that case, the employee’s hands became numb and stiff after driving, he could not hold a cup a coffee or a cigarette, he was unable to turn the key to unlock his car door, he used Velcro so he did not have to tie his sneakers, and he used an oversized tube of toothpaste in order to brush his teeth. Id. at 1254.

Returning to our case, in General Electric this court discussed the nature of Mr. Baggett’s left-leg injury:

“Baggett fell at work while loading refrigerators onto a railroad car. As a result of the accident, Baggett fractured his left ankle and tore cartilage in his left knee.
“In June 2001, Dr. Scott Sharp operated on Baggett’s left knee. Dr. Sharp determined that Baggett was able to return to work without restrictions on September 17, 2001. Baggett began to experience swelling of his left knee soon after returning to work. On September 21, 2001, Dr. Sharp gave Baggett a steroid injection in his left knee and again determined that Baggett was able to return to work. Although Baggett continued to work his regular job, he received assistance from his coworkers in performing his duties due to the pain in his left knee.
“In January 2003, Dr. John Higginbotham, an orthopedic surgeon, operated on Baggett’s left knee in an attempt to further repair the torn cartilage in that knee. Baggett testified that the condition of his left knee deteriorated after the January 2003 surgery. In February 2004, Dr. Higginbotham again operated on Baggett’s left knee. Dr. Higginbotham recommended that Bag-gett undergo a total joint replacement of the left knee. Dr. Higginbotham testified that a total joint replacement would reduce the pain in Baggett’s left knee to the point where he would not require continual pain medication. Dr. Higginbotham stated that Baggett reached maximum medical improvement on May 14, 2004.
“On March 16, 2005, Dr. Eric Beck performed a functional-capacities evaluation (‘FCE’) on Baggett. During the FCE, Baggett, using a 10-point scale, rated the current level of pain in his left knee as a 7. Baggett rated the average level of pain in that knee during the previous month as a 7 on a 10-point scale, with 7 being the lowest level of pain and 9 the highest level of pain he had experienced during that period. Dr. Beck assigned the following restrictions to Baggett: occasional lifting of up to 25 pounds and frequent lifting of up to 20 pounds, provided that such lifting takes place between the knuckle and the waist while standing; no more than one hour standing at a time; no more than 15 minutes walking at a time; no kneeling, crawling, or balancing; no working at unprotected heights or around moving machinery; and occasional squatting, crouching, and climbing. Pursuant to guidelines established by the American Medical Association (‘AMA’), Dr. Beck assigned an 8% impairment rating to Baggett’s whole body. Dr. Beck testified by deposition that he had assigned the 8% impairment rating according to specific AMA guidelines regarding the injuries to Baggett’s left knee and left ankle.
“Baggett testified at trial that he must use a walking cane ‘about 90% of the time’ and that he wears a knee brace on his left knee all day. Baggett testified that, because of the injuries to his left leg, he experiences pain when performing any activity other than ‘just sitting around.’ Baggett further testified that he is unable to squat and lift without experiencing pain.... Baggett testified that he uses only Celebrex, a prescription nonsteroidal, anti-inflammatory medication, to relieve pain; Baggett does not use narcotic medication to relieve pain. Baggett further testified that he soaks in a tub with alcohol and Epsom salts to relieve pain and swelling. ...”

1 So.3d at 1016-17.

In its November 2008 judgment, the trial court adopted the findings of facts made in the December 2005 judgment. In its December 2005 judgment, the trial court, which had the benefit of observing Mr. Baggett at trial, found these pertinent facts regarding the left-leg injury:

“[Mr. Baggett], who is obviously in pain and who has a severe limp, walks with a cane and a brace on his left leg. He has trouble, according to his testimony, lifting, standing and walking. He testified that he is unable to kneel, crawl, squat, climb, balance, stoop and bend. He states that he is unable to engage in his previous hobbies of playing with his grandchildren, running, and working. [Mr. Baggett] experiences pain on a daily basis.... His pain is made worse by kneeling, walking and movement. [Mr. Baggett] testified that the pain is made better by rest, medications and heat, but that his medical condition has not improved from physical therapy programs.
“All of the credible testimony before the Court is that [Mr. Baggett] was in fact severely injured on April 2, 2001, and that his medical status post-accident, including three surgeries and multiple therapy efforts, has been one of gradual and constant depreciation.... [Mr. Baggett] has difficulty performing normal daily tasks, can no longer perform basic life activities, and is unable to engage in his previous hobbies. [Mr. Baggett] has had three surgeries on his left knee, but continues to have pain and debilitation. His complaints of pain are significant and are credible to the Court.”

The record in this case contains substantial evidence indicating that Mr. Baggett lost the use of his left leg for all practical purposes. Similar to the employee in United States Steel, who “could not use his left leg to function in a normal fashion in any normal activities,” 71 Pa. Commw. at 356, 454 A.2d at 1181, Mr. Baggett, because of his injury, experienced “difficulty performing normal daily tasks.” The employee in Unites States Steel had trouble performing “almost ‘any activity at all’” due to the pain caused by his injury. 71 Pa. Commw. at 357, 454 A.2d at 1180. Similarly, Mr. Baggett was extremely limited in his activities because he experienced pain performing any activity other than “just sitting around.” Similar to the injured employee in Faulkner Cadillac, who was unable “to perform numerous routine tasks associated with the activities of daily living,” 831 A.2d at 1255, Mr. Baggett struggled to perform “basic life activities” and was “unable to engage in his previous hobbies.” The loss of the use of a scheduled member “does not mean that an injured body part is of absolutely no use whatsoever.” Faulkner Cadillac, 831 A.2d at 1254. Viewing the facts “in the light most favorable to the findings of the trial court,” as this court is required to do, Ex parte Professional Bus. Omiers Ass’n Workers’ Comp. Fund, 867 So.2d 1099, 1102 (Ala.2003), we conclude that the trial court did not err in determining that Mr. Baggett had sustained the total loss of use of his left leg under § 25-5-57(a)(3). Accordingly, the trial court did not err in awarding Mrs. Baggett benefits for that injury.

Based on the foregoing, the judgment of the trial court is affirmed.

AFFIRMED.

PITTMAN and THOMAS, JJ., concur.

THOMPSON, P.J., and MOORE, J., concur in the result, without writings.

      . General Electric does not argue that Mrs. Baggett is precluded from recovery under § 25-5-57(a)(5) by virtue of this court's construction, in Drummond Co. v. Boatman, 825 So.2d 823 (Ala.Civ.App.2001), of that section as it relates to § 25-5-60, Ala.Code 1975. See also Ex parte State Dep't of Indus. Relations, 848 So.2d 251 (Ala.2002), citing Boatman with approval. Therefore, we do not address that issue. See Avis Rent A Car Sys., Inc. v. Heilman, 876 So.2d 1111, 1124 n. 8 (Ala.2003) (“An argument not made on appeal is abandoned or waived.”). Moreover, General Electric did not make such an argument to the trial court. See State Farm Mut. Auto. Ins. Co. v. Motley, 909 So.2d 806, 821 (Ala.2005) (“[An appellate court] cannot consider arguments advanced for the purpose of reversing the judgment of a trial court when those arguments were never presented to the trial court....”).

      . Regarding factual issues, Pennsylvania law, like Alabama law, requires affirmance on appeal if substantial evidence supports the findings on which the judgment below is based. 71 Pa. Commw. at 355, 454 A.2d at 1181. See § 25-5-81(e)(2), Ala.Code 1975.

      . In its November 2008 judgment, the trial court initially stated that it was adopting the conclusions of law and findings of fact of its December 2005 judgment. Some of the conclusions and supporting factual findings in the December 2005 judgment, of course, are inconsistent with this court's decision in General Electric reversing that judgment. We assume that the trial court, in adopting its conclusions and findings from the December 2005 judgment, obviously intended to adopt those conclusions and findings insofar as they do not conflict with General Electric. None of the trial court’s pertinent findings of fact from the December 2005 judgment discussed herein conflict with General Electric.


author: WINDOM, Judge.

text:
    STATE of Alabama v. Marvin Tobias COWLING.
    CR-07-1544.
    Court of Criminal Appeals of Alabama.
    Oct. 2, 2009.

      Troy King, atty. gen., and Marc Alan Starrett, asst. atty. gen., for appellant.
    Timothy A. Offord, Jr., Montgomery, for appellee.
   WINDOM, Judge.

The State of Alabama appeals the circuit court’s May 30, 2008 order granting Marvin Tobias Cowling’s “Motion to Suppress.” On January 26, 2007, the Montgomery County Grand Jury issued an indictment charging Cowling with one count of possession of marijuana for other than personal use, a violation of § 13A-12-213, Ala.Code 1975, and one count of possession of drug paraphernalia, a violation of § 13A-12-260, Ala.Code 1975.

On April 10, 2007, Cowling filed a “Motion to Suppress,” in which he argued that the State’s evidence should be suppressed because such evidence was the fruit of an illegal search and seizure. After conducting an evidentiary hearing, the circuit court granted Cowling’s motion. However, the circuit court subsequently entered an order on April 30, 2007 denying Cowling’s motion. One year later, on April 30, 2008, Cowling filed a “Motion to Renew Motion to Suppress,” wherein he moved the circuit court to “clarify any ambiguity created with the original motion,” and suppress all evidence obtained by the police relating to his case. (C.R. 24.) After conducting a second hearing on May 30, 2008, the circuit court set aside its April 30, 2007 order and granted Cowling’s “Motion to Renew Motion to Suppress.” On June 3, 2008, the State of Alabama timely filed its notice of appeal.

The following facts were established during the suppression hearing. On August 6, 2006, Officer R.J. Harris, with the Montgomery Police Department, along with several additional officers, executed a search warrant on a duplex home located at 1112 Oak Street in Montgomery, Alabama (hereinafter “the duplex”). The search warrant was obtained based upon alleged alcohol violations occurring at the duplex. Officer Harris and her fellow officers were instructed that there would be drugs in the area and that anyone near the duplex should be interviewed. (R. 9.)

Upon arriving at the duplex, the officers pulled into a grassy lot, used for parking, that adjoined the duplex. “[Djirt driveways” running through the grassy lot connected the backyard of the duplex to the street. (R. 13, 7.)

As the officers drove onto the grassy lot, Cowling and several other men were standing around Cowling’s automobile. When the men noticed the officers approaching, Cowling and the other men got into Cowling’s vehicle. As the officers were parking and getting out of their vehicles, Cowling and the other men “got out and started running down Oak Street.” (R. 8.) Officer Harris and the other officers chased Cowling and the other individuals, eventually caught them, and brought them back to the lot in order to talk with them. Officer Harris testified that the individuals were not under arrest at that time, rather that the officers chased the individuals in order to “detain them to see why they’re running because it’s supposed to be drugs and alcohol at that residence.” (R. 15.)

While the officers were questioning Cowling and the others in an attempt to determine why they ran, Officer Harris observed marijuana smoke emanating from the interior of Cowling’s car. After discovering the marijuana smoke, Office Harris searched Cowling’s vehicle and found a burning marijuana cigarette, digital scales, and ten ounces of prepackaged marijuana inside. Shortly thereafter, Cowling admitted that the ear and the items inside belonged to him. Based on this evidence, the circuit court suppressed Cowling’s statement and the evidence seized from his car.

On appeal, the State argues that the circuit court erroneously granted Cowling’s renewed motion to suppress evidence seized or obtained during Cowling’s detention and the search of his car. Specifically, the State argues that law enforcement officers had sufficient reasonable suspicion to detain Cowling under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and its progeny; therefore, Cowling’s statement should not have been suppressed. The State further argues that the search of Cowling’s car was proper under the “automobile exception” because probable cause existed to justify the search; therefore, the circuit court should not have suppressed the evidence found in Cowling’s car. This court agrees with both of the State’s arguments.

“This Court reviews de novo a circuit court’s decision on a motion to suppress evidence when the facts are not in dispute.” State v. White, 28 So.3d 827, 829 (Ala.Crim.App.2009) (citing State v. Skaggs, 903 So.2d 180, 181 (Ala.Crim.App. 2004)) (internal citations omitted). In the instant case, the facts are uncontested; therefore, the only issue before this court is the circuit court’s application of the law to those facts. Consequently, this Court affords no presumption in favor of the circuit court’s ruling and reviews the circuit court’s decision de novo.

It is well settled that warrantless searches and seizures are per se unreasonable under the Fourth Amendment unless the State establishes that the search or seizure falls within a recognized exception. Ex parte Hilley, 484 So.2d 485, 488 (Ala.1985). Exceptions to the warrant requirement include: 1) objects in plain view; 2) consensual searches; 3) a search incident to a lawful arrest; 4) hot pursuit or emergency situations; 5) probable cause coupled with exigent circumstances; and 6) an investigatory detention and frisk pursuant to Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Ex parte Tucker, 667 So.2d 1339, 1343 (Ala.1995). Another recognized exception to the warrant requirement is the “automobile exception,” which allows law enforcement to search an automobile based on probable cause alone. State v. Black, 987 So.2d 1177, 1180 (Ala.Crim.App.2006) (citing Maryland v. Dyson, 527 U.S. 465, 466-67, 119 S.Ct. 2013, 144 L.Ed.2d 442 (1999)). Thus, this court must determine whether Cowling’s detention and the subsequent search of his vehicle fall within one of these recognized exceptions to the Fourth Amendment’s warrant requirement.

I.

The State first argues that, under the totality of the circumstances, the police officers had a reasonable suspicion to believe that Cowling was engaged in criminal activity; therefore, his brief detention was justified under Terry v. Ohio and its progeny. The State further argues that because Cowling’s detention falls within the Terry exception, the circuit court erroneously granted Cowling’s motion to suppress evidence obtained pursuant to that detention, i.e., Cowling’s inculpatory statement.

Regarding a brief investigatory detention,

“The United States Supreme Court in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), held that ‘a police officer may, in appropriate circumstances and in an appropriate manner, approach a person for purposes of investigating possible criminal behavior even though there is no probable cause to make an arrest.’ 392 U.S. at 22, 88 S.Ct. at 1880. The standard for allowing a Terry stop is whether there is a reasonable suspicion that ‘the person being stopped has engaged in some type of criminal activity.’ Webb v. State, 500 So.2d 1280, 1281 (Ala.Crim.App.), cert. denied, 500 So.2d 1282 (Ala.1986).”

Muse v. State, [Ms. CR-08-0699, Aug. 28, 2009] -So.3d -, - (Ala.Crim.App.2009) (quoting Ex parte Carpenter, 592 So.2d 627, 629 (Ala.1991)); see also Gaskin v. State, 565 So.2d 675, 677 (Ala.Crim.App.1990) (“The United States Supreme Court in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), held that a police officer may make a brief investigatory detention based upon a ‘reasonable suspicion’ of criminal activity.”).

“In reviewing reasonable suspicion determinations, courts must look at the ‘ “totality of the circumstances” ’ to see whether the detaining officer had a ‘ “particularized and objective basis” ’ for suspecting wrongdoing. United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002), quoting United States v. Cortez, 449 U.S. 411, 417-418, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981)). ‘This process allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that “might well elude an untrained person.” ’ Arvizu, 534 U.S. at 273, 122 S.Ct. 744 (quoting Cortez, 449 U.S. at 418, 101 S.Ct. 690).”

Muse, — So.3d at -. A brief investigatory detention is proper under Terry if, based on the totality of the circumstances, “the detaining officers ... have a particularized and objective basis for suspecting the particular person stopped of criminal activity.” United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981).

In the instant case, Officer Harris and the other officers were in the process of executing a search warrant on a duplex at 1112 Oak Street. Prior to executing the warrant, Officer Harris was informed that the area was known for drug activity. Upon arriving at the duplex, the officers pulled into a vacant, grassy lot, used for parking by the occupants of the duplex. As the officers were pulling into the lot, Officer Harris saw Cowling and other individuals standing next to a car. When Cowling noticed the officers, he and the other individuals got into the car. Shortly thereafter, the officers parked their cars. While the officers parked their cars, Cowling and three other individuals got out of Cowling’s car and ran from the officers. The officers chased and caught Cowling to question him regarding why he ran. During the brief detention, Cowling made in-culpatory statements.

Cowling’s presence in an area known for drug activity coupled with his unprovoked flight from the police provided the officers a reasonable suspicion to believe that Cowling was involved in criminal activity. See Illinois v. Wardlow, 528 U.S. 119, 124-25, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000) (holding that a defendant’s presence in a high crime area coupled with the defendant’s unprovoked flight upon noticing the police justified an investigatory stop pursuant to Terry). Therefore, Cowling’s detention was not unlawful, and the circuit court erroneously granted Cowling’s motion to suppress evidence resulting from that detention, i.e., Cowling’s inculpatory statement.

II.

The State next argues that the circuit court erroneously suppressed evidence seized from Cowling’s car because Officer Harris had probable cause to believe that evidence of a crime existed in the ear. Specifically, the State asserts that the search of Cowling’s car was proper under the “automobile exception” to the warrant requirement because Officer Harris observed smoke emanating from the car and smelled burning marijuana. We agree.

As noted above, one recognized exception to the warrant requirement is the “automobile exception,” which allows law enforcement to search an automobile based on probable cause alone. Black, 987 So.2d at 1180 (citing Dyson, 527 U.S. at 466-67, 119 S.Ct. 2013). Under the “automobile exception” to the warrant requirement, “ ‘[a] warrantless search of a vehicle is justified where there is probable cause to believe the vehicle contains contraband.’ ” Harris v. State, 948 So.2d 583, 587 (Ala.Crim.App.2006) (quoting Lykes v. State, 709 So.2d 1335, 1337 (Ala.Crim.App.1997)). “ ‘Probable cause to search a vehicle exists when all the facts and circumstances within the officer’s knowledge are sufficient to warrant a person of reasonable caution to conclude that an offense has been or is being committed and the vehicle contains contraband.’ ” Harris, 948 So.2d at 587 (quoting State v. Odom, 872 So.2d 887, 891 (Ala.Crim.App.2003)). “The level of evidence needed for a finding of probable cause is low.” State v. Johnson, 682 So.2d 385, 387 (Ala.1996). “In dealing with probable cause ... we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, and legal technicians act....” Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949). “[Ojnly the probability, and not a prima facie showing, of criminal activity is the standard of probable cause.” Stone v. State, 501 So.2d 562, 565 (Ala.Crim.App.1986)(quoting Spinelli v. United States, 393 U.S. 410, 419, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969)).

At the suppression hearing, Officer Harris testified that after the officers detained Cowling, she walked over to Cowling’s vehicle. Once she was next to the vehicle, Officer Harris noticed smoke emanating from the interior of the vehicle and that the smoke smelled like marijuana. Officer Harris further testified that it was the marijuana smoke that “drove” her to look inside the vehicle, where she found a burning marijuana cigarette, ten ounces of prepackaged marijuana, and digital scales. (C. 9, R. 10.)

“[I]t is well settled ... that the odor of burned marijuana emanating from an automobile is enough to provide probable cause to search the vehicle.” Blake v. State, 772 So.2d 1200, 1202 (Ala.Crim.App.2000). See also State v. Gargus, 855 So.2d 587, 592 (Ala.Crim.App.2008) (holding that an officer’s detection of “the odor of ‘burnt marijuana smoke’ emanating from [a] vehicle ... established probable cause” to search the vehicle); Key v. State, 566 So.2d 251, 254 (Ala.Crim.App.1990) (same). C.f. Adams v. State, 815 So.2d 578, 582, n. 4 (Ala.2001) (holding that “where police officers smell the odor of burned or burning marijuana coming from a legally stopped automobile, police officers have probable cause to arrest all of the automobile’s occupants ... ”). Based on Officer Harris’s undisputed testimony that she smelled burning marijuana emanating from Cowling’s car prior to the search, the officers had “ ‘probable cause to believe the vehicle contain[ed] contraband.’ ” Harris, 948 So.2d at 587 (quoting Lykes, 709 So.2d at 1337). Therefore, Officer Harris’s search of Cowling’s car was justified under the “automobile exception” to the warrant requirement. Accordingly, the circuit court erred in granting Cowling’s motion to suppress evidence seized during the search of his car.

For the foregoing reasons, the judgment of the circuit court is reversed and this cause is remanded for proceedings consistent with this opinion.

REVERSED AND REMANDED.

WISE, P.J., and WELCH, KELLUM, and MAIN, JJ., concur.

      . Cowling argues that the State’s notice of appeal was untimely; therefore, this appeal should be dismissed. The State, however, filed it notice of appeal on June 3, 2008, less than seven days after the circuit court entered its May 30, 2008 order granting Cowling's renewed motion to suppress. (C.R. 3, 27.) Therefore, the State’s notice of appeal was timely pursuant to Rule 15.7, Ala. R.Crim. P.


author: WISE, Presiding Judge.

text:
    James Richard GUY v. STATE of Alabama.
    CR-08-0871.
    Court of Criminal Appeals of Alabama.
    Oct. 2, 2009.

      William D. King IY, Carrollton, for appellant.
    Troy King, atty. gen., and Kristi 0. Wilkerson, asst. atty. gen., for appellee.
   WISE, Presiding Judge.

The appellant, James Richard Guy, entered a guilty plea to second-degree theft of property, a violation of § 13A-8^4, Ala. Code 1975. The trial court sentenced him, as a habitual offender, to serve a term of fifteen years in prison. See § 13A-5-9(c)(1), Ala.Code 1975. It also ordered him to pay $1,115,000 in restitution to the victim. Guy filed a “Motion for Restitution Hearing and to Modify Sentence,” which the trial court denied. This appeal followed.

At the end of the guilty plea proceedings in this case, the trial court sentenced Guy and ordered him to pay $1,115,000 in restitution. The State did not present any testimony or documentary evidence regarding the amount of restitution during the guilty plea proceedings. In fact, the record is silent as to how the trial court arrived at the amount of restitution it ordered. After the guilty plea proceedings, Guy filed a “Motion for Restitution Hearing and to Modify Sentence” in which he alleged that the amount of restitution was in error, alleged that the documents submitted by the victim did not support the amount of restitution ordered, and requested that the trial court conduct a restitution hearing and modify the amount of restitution ordered. However, the trial court denied that motion.

Guy argues that the trial court erroneously ordered him to pay restitution without first requiring the State to prove the amount of restitution due to the victim. The State concedes that it appears that Guy has been denied a restitution hearing and that we should remand this case for the trial court to conduct a restitution hearing and to enter a final restitution order.

‘When a defendant is convicted of a criminal activity or conduct which has resulted in pecuniary damages or loss to a victim, the cowrt shall hold a hearing to determine the amount or type of restitution due the victim or victims of such defendant’s criminal acts. Such restitution hearings shall be held as a matter of course and in addition to any other sentence which it may impose, the court shall order that the defendant make restitution or otherwise compensate such victim for any pecuniary damages. The defendant, the victim or victims, or their representatives or the administrator of any victim’s estate as well as the district attorney shall have the right to be present and be heard upon the issue of restitution at any such hearings.”

§ 15-18-67, Ala.Code 1975. Also, this court addressed a similar situation in Alford v. State, 651 So.2d 1109, 1113-14 (Ala.Crim.App.1994), as follows:

“The appellant further contends that the trial court erred in ordering restitution without requiring proper proof. We agree. The restitution statute requires that the parties involved have an opportunity to be heard on the restitution issue. Varner v. State, 497 So.2d 1135 (Ala.Cr.App.1986). A defendant in a restitution hearing is entitled to a hearing at which legal evidence is introduced to determine the precise amount of restitution due the victim. Henry v. State, 468 So.2d 896 (Ala.Cr.App.1984), cert. denied, 468 So.2d 902 (Ala.1985). After examining the record of the restitution hearing and the restitution order in the instant case, we are of the opinion that they do not meet the requirements of §§ 15-18-65, et seq.; Rule 26.11, Ala. R. Cr. P.; and Alabama case law. The trial court failed to determine the precise amount of restitution to be paid based upon legal evidence. The restitution order is open-ended, i.e., the amount of restitution to be paid is left to future determination, is speculative, and is based upon vague and questionable testimony of the victim. No documentary evidence was introduced to support the amount awarded. Furthermore, the appellant had no opportunity to introduce evidence at the restitution hearing or to contest the testimony of the victim other than through cross-examination. Before a defendant can be held liable for restitution, it must be established that his criminal act was the proximate cause of the injury for which the victim is seeking restitution. Strough v. State, 501 So.2d 488 (Ala.Cr.App.1986).
“We set aside the restitution order in this case and remand the case to the trial court for a new restitution hearing for the purpose of determining restitution in accordance with the restitution statutes and Rule 26.11. At that hearing, the appellant, represented by counsel, will be given an opportunity to appear and to present evidence in his behalf.”

Based on the record before us, we conclude that the trial court erroneously ordered Guy to pay restitution without conducting a restitution hearing and without requiring the State to prove the amount of restitution owed to the victim. Accordingly, we reverse the trial court’s judgment ordering Guy to pay $1,115,000 in restitution and remand this case for the trial court to conduct a hearing regarding the amount of restitution owed to the victim.

REVERSED AND REMANDED.

WELCH, WINDOM, KELLUM, and MAIN, JJ., concur.

      . The record on appeal does not include any documents the victim may have submitted regarding the amount of restitution.