                           THIRD DIVISION
                            MILLER, P. J.,
                      MCFADDEN and MCMILLIAN, JJ.

                   NOTICE: Motions for reconsideration must be
                   physically received in our clerk’s office within ten
                   days of the date of decision to be deemed timely filed.
                               http://www.gaappeals.us/rules


                                                                      May 25, 2016




In the Court of Appeals of Georgia
 A16A0432. THE STATE v. COOK.

      MILLER, Presiding Judge.

      Nekia Cook was injured in a car accident and taken to Grady Hospital. Security

officers at the hospital allegedly noticed an odor of marijuana emanating from Cook’s

backpack, confiscated the bag, and searched it. Inside, they found a mason jar full of

marijuana. The security officers called the Atlanta Police Department, and the officer

who responded then searched the bag without obtaining a warrant. After Cook was

arrested and charged with possession with intent to distribute marijuana (OCGA § 16-

13-30), he moved to suppress the evidence. The trial court granted the motion, and

the State now appeals. We affirm.

                   In reviewing the grant . . . of a motion to suppress,
             we construe the evidence in a light most favorable to
             upholding the trial court’s findings and judgment. . . . [W]e
             will not disturb the lower court’s ruling if there is any
             evidence to support its findings. . . . The trial court’s
             application of law to undisputed facts, however, is subject
             to de novo review.


(Citation omitted.) Adkinson v. State, 322 Ga. App. 1 (743 SE2d 563) (2013). Where

the trial court has made express findings of disputed facts, this Court is limited to

those facts, and we will accept them unless they are clearly erroneous. Hughes v.

State, 296 Ga. 744, 746 (1) (770 SE2d 636) (2015).

      So viewed, the testimony at the suppression hearing showed that Cook was

transported at his request by ambulance to Grady Hospital following a traffic

accident. Upon arrival, Grady’s security officers searched the backpack he was

carrying in his lap. The officers found a mason jar of marijuana and called the police.

When a police officer responded, he searched the bag and found the drugs and some

clothing. The officer had no personal knowledge of what Grady security personnel

had seen, nor did he smell the marijuana himself, and none of this information was

included in his police report. The officer arrested Cook and then obtained a search

warrant.




                                          2
      In its sole enumeration of error, the State argues that the trial court erred by

suppressing the evidence because (a) the exclusionary rule did not apply;1 (b) the

search was reasonable; and (c) no warrant was necessary because the search did not

invade Cook’s expectation of privacy.2 We disagree.

      “The right of the people to be secure in their persons, houses, papers, and

effects against unreasonable searches and seizures shall not be violated.” (Citations,

punctuation, and emphasis omitted.) Smith v. State, 324 Ga. App. 542, 544 (1) (751

SE2d 164) (2013). Officers may gain “access justified by the Fourth Amendment by

obtaining a warrant, obtaining consent, or by the existence of exigent circumstances

which require the officers to act immediately without [a] warrant or consent.”

(Citation and punctuation omitted.) Id. “[A] warrantless search is presumed to be

invalid and the State has the burden of showing otherwise.” Williams v. State, 296 Ga.

      1
         In support of this argument, the State cites State v. Young, 234 Ga. 488, 493
(2) (216 SE2d 586) (1975), setting out three categories of searches: those by private
persons, those by governmental agents, and those by governmental law enforcement
agents. The Supreme Court held in Young that there is no Fourth Amendment interest
at stake in searches conducted by private persons; searches by government agents are
subject to Fourth Amendment protections, but not the exclusionary rule; and
governmental law enforcement agents are covered by Fourth Amendment standards
as well as the exclusionary rule. Id.
      2
         The States concedes for purposes of appeal that Grady Hospital security
officers are “state actors.”

                                          3
817, 819 (771 SE2d 373) (2015); see also OCGA § 17-5-30 (b) (the State bears the

burden of proving that a search was lawful).3

      Here, the only testimony presented was that of the police officer who was

called to Grady Hospital. Importantly, the officer did not testify that he personally

smelled marijuana. Notably, the State did not present any testimony from the hospital

security officers who allegedly smelled the marijuana, confiscated the bag, and

searched it.

      Moreover, the State does not argue that Cook consented or that there were

exigent circumstances justifying a warrantless search. Therefore, on these facts, we

must conclude, as a matter of law, that the State failed to meet its burden under § 17-

5-30 (b) to prove that the warrantless search of Cook’s bag was lawful.

      To the extent that the State argues that the officer’s inspection of the backpack

was not a search because it did not extend any further than the prior search conducted

by security personnel, the State did not raise this issue before the trial court.

“[I]nasmuch as we are a court for the correction of errors, we do not consider issues


      3
       We note that the smell of marijuana, alone, can be sufficient probable cause
to support a search warrant. State v. Kazmierczak, 331 Ga. App. 817, 823 (771 SE2d
473) (2015). Thus, the proper action here would have been to obtain a warrant before
searching the bag.

                                          4
which were not raised below and ruled on by the trial court.” (Citation omitted.)

Spivey v. State, 272 Ga. App. 224, 228 (2) (612 SE2d 65) (2005). We also do not

address the State’s argument as to whether Grady Hospital security personnel are

governmental actors or governmental law enforcement actors because the trial court

did not address this issue below. Id. Accordingly, because the State failed to meet its

burden to prove that the search was lawful, we affirm the trial court’s grant of the

motion to suppress.

        Judgment affirmed. McFadden, J. concurs. McMillian, J., concurs in judgment

only.




                                          5
