concurring in part and dissenting in part.
¶ 24 The majority holds that the district court erred in suppressing Luna-Solis’s statements under the Sixth Amendment. Maj. op. ¶ 16. I agree that the district court erred in its analysis, but I disagree with the majority’s ultimate conclusion. In my view, the district court correctly suppressed Luna-Solis’s statements because they were obtained in violation of his rights under the Fourth Amendment and article II, section 7 of the Colorado Constitution when Denver detectives illegally expanded the scope of the Crim. P. 41.1 order by interrogating him.
¶ 25 The majority also holds that the district court erred in barring the use of the DNA evidence at trial as a discovery sanction under Crim. P. 16. Maj. op. ¶21. The majority appears to reason that no Crim. P. 16 violation occurred because the Denver detectives were from “another judicial district,” and the Crim. P. 41.1 order “con-eern[ed] a different offense.” Id. 20. I agree with the majority’s conclusion that no discovery violation occurred but write separately to explain why. In my view, no discovery violation occurred because Crim. P. 16 applies to judicial proceedings, and judicial proceedings had not been initiated against Luna-Solis stemming from the Denver assault.
¶ 26 My analysis is driven by the operation of Crim. P. 41.1 and Crim. P. 16 11(a) and what each rule is designed to do. Crim. P. 41.1 allows for limited detentions of suspects on less than probable cause, and our precedent prohibits police from expanding the scope of that rule to interrogate a suspect. By failing to undertake a Fourth Amendment analysis, the majority undermines Luna-Solis’s rights under that constitutional provision while expanding, by implication, the narrowly defined circumstances under which Crim. P. 41.1 detentions are constitutionally permissible.
¶ 27 Hence, I respectfully dissent from Part III of the majority opinion and concur in the result as to Part IV.
I. Background
¶ 28 Before addressing the issues presented in this case, a brief review of the relevant facts is helpful.
¶ 29 In 2002, in Denver, two people kidnapped a woman off the street, drove her to *936a remote location, and sexually assaulted her — the Denver assault. Denver investigators recovered DNA from both but were unable to identify them and logged their DNA profiles into a national database.
¶30 About a year later, a woman was kidnapped, driven to a remote location, and sexually assaulted — the Arapahoe assault. Investigators recovered one person’s DNA, which matched the DNA of the first unknown person involved in the Denver assault, but both the Denver assault and the Arapahoe assault went unsolved.
¶ 31 Years later, as a result of an unrelated conviction in Arizona, defendant Jesus Luna-Solis’s DNA profile was logged into a national database, which resulted in a match with the DNA of the second unknown person involved in the Denver assault. Perhaps thinking that the same people committed both the Denver and Arapahoe assaults, Aurora police in charge of investigating the Arapahoe assault contacted the Arapahoe assault victim and showed her a photographic lineup that included Luna-Solis. She identified Luna-Solis as one of her attackers. He was arrested, charged with multiple crimes stemming from the Arapahoe assault, and detained in the Arapahoe County detention facility to await trial.
¶32 As the Arapahoe case progressed, Denver police began a renewed investigation into the Denver assault. To confirm the DNA match, a deputy district attorney in Denver obtained a Crim. P. 41.1 order, which permitted the limited detention of Luna-Solis to collect nontestimonial identification evidence from him.
¶ 33 Without notifying Luna-Solis’s counsel in the Arapahoe case, two Denver detectives arrived at the Arapahoe County detention facility to execute the Crim. P. 41.1 order. As Detective Garcia testified at the Arapahoe assault suppression hearing, she and her partner sought to “interview Mr. Solis, if he was willing to [talk].” At the detectives’ request, Luna-Solis was brought to an interview room. Detective Garcia testified she told Luna-Solis that they were there “to talk to him about a sex assault that occurred in Denver.” In response, Luna-Solis stated that he should have an attorney. According to Detective Garcia’s testimony, the detectives then began to “pack up” and “proceed to execute the 41.1,” but Luna-Solis asked, “What is the sex assault about?” Detectives told Luna-Solis that they could not ask him questions unless he waived his right to an attorney. They advised Luna-Solis of his rights under Miranda, which he waived orally and in writing. The detectives then interrogated Luna-Solis for about twenty-five minutes. At the end of the interrogation, they executed the Crim. P. 41.1 order by obtaining his saliva sample.
¶ 34 After pretrial hearings raising various evidentiary motions, the district court suppressed a portion of Luna-Solis’s statements to the Denver detectives on Sixth Amendment grounds. The court reasoned that, despite Luna-Solis’s request for counsel, his Miranda waiver was valid because he “voluntarily and without solicitation or encouragement” engaged the Denver detectives in conversation by asking about the Denver assault. However, the court suppressed several of his statements because it reasoned that the detectives were questioning Luna-Solis about the Arapahoe assault, for which he was represented by counsel, and not the Denver assault, for which he was not. The court also suppressed the DNA evidence obtained by the detectives as a sanction for a discovery violation under Crim. P. 16 because Luna-Solis’s counsel was not notified of the time and place that the Crim. P. 41.1 order would be executed.
II. Crim. P. 41.1 and Crim. P. 16
¶ 35 Because this case requires an examination of Crim. P. 41.1 and Crim. P. 16 and what those rules are designed to accomplish, I begin with a brief discussion of those rules.
¶36 We adopted Crim. P. 41.1 after the United States Supreme Court suggested, in dicta, that limited detentions for fingerprinting might be constitutionally permissible under the Fourth Amendment on less than probable cause, provided that a judicial officer pre-authorized the detention. See Davis v. Mississippi, 394 U.S. 721, 727-28, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969). Under Crim. P. 41.1, an order for collection of nontestimonial *937identification evidence must be based on specific and articulable facts set forth in an affidavit establishing that (1) there is probable cause to believe that an offense has been committed; (2) there are “reasonable grounds,” not amounting to probable cause, to believe that the suspect committed the offense; and (3) the nontestimonial identification evidence will be of material aid in determining whether the suspect committed the offense. To uphold the constitutionality of Crim. P. 41.1, we stressed the “narrowly defined circumstances” under which such limited detentions are constitutionally permissible. People v. Madson, 638 P.2d 18, 31-32 (Colo.1981). And, in People v. Harris, we held that the Fourth Amendment prohibits interrogating a suspect while executing a Crim. P. 41.1 order. 762 P.2d 651, 659 (Colo.1988).
¶ 37 Crim. P. 16 regulates discovery in criminal trials. Crim. P. 16 11(a)(1) permits the district court, “upon request of the prosecuting attorney,” to require the “accused” to provide nontestimonial identification evidence. Crim. P. 16 11(a) does not contain the specific restrictions found in Crim. P. 41.1, but it is circumscribed by “constitutional limitations” and the district court’s discretion. Unlike Crim. P. 41.1, it also requires the prosecuting attorney to provide notice to the accused and his or her counsel of the time and place that the nontestimonial identification evidence will be collected.
¶38 Crim. P. 41.1 and Crim. P. 16 11(a) both concern collecting nontestimonial identification evidence, and they outline different procedures for doing so. As noted, Crim. P. 41.1 outlines the procedure for detaining a suspect on less than probable cause to collect nontestimonial evidence. By its terms, Crim. P. 41.1 applies when police do not have probable cause to arrest a suspect on the allegations for which nontestimonial identification evidence is sought.
¶ 39 By contrast, Crim. P. 16 is a discovery rule, and discovery rules apply to judicial proceedings. The reference in Crim. P. 16 11(a) to obtaining evidence from an “accused,” rather than a suspect, presupposes that charges have been filed. Its provision requiring notice to the accused’s counsel assumes that the accused has the right to counsel, which attaches, under the Sixth Amendment, when charges are filed. See People v. Vickery, 229 P.3d 278, 280 (Colo.2010). By its terms, Crim. P. 16 applies once judicial proceedings have been initiated. See People v. Dist. Court, 664 P.2d 247, 250 n. 5 (Colo.1983).
¶ 40 With this basic framework in mind, I turn to an analysis of the issues presented in this case.
III. Suppression of Statements
¶41 The majority holds that the district court erred in suppressing Luna-Solis’s statements under the Sixth Amendment. Maj. op. ¶ 16. I agree with the majority that the district court erred in its analysis, but I would affirm the district court’s suppression order because Luna-Solis’s statements were obtained in violation of his rights under the Fourth Amendment, its Colorado counterpart, and our decision in People v. Harris.
¶ 42 In Harris, we addressed the constitutionality of when police question a suspect detained on less than probable cause to arrest pursuant to Crim. P. 41.1. In that case, police picked up a suspect from his workplace, detained him under Crim. P. 41.1, and transported him to the hospital to obtain nontestimonial identification evidence. Harris, 762 P.2d at 652. While en route, a police officer advised the suspect of his Miranda rights and then interrogated him about his actions and whereabouts on the night when a sexual assault was alleged to have taken place. Id. In response to the officer’s questions, the suspect provided details about where he had been and what he had been doing on the night in question. Id. The officer later testified that he had planned to interrogate the suspect while executing the Crim. P. 41.1 order. Id. at 653.
¶ 43 We held that the Fourth Amendment and its Colorado counterpart prohibit police from inteiTogating a suspect detained on less than probable cause pursuant to Crim. P. 41.1. Id. at 658. We noted that Crim. P. 41.1 permits law enforcement to acquire non-testimonial identification evidence only when collection of that evidence “involves none of *938the probing’into an individual’s private life and thoughts that marks an interrogation or search.” Id. at 654-55 (quoting Davis, 394 U.S. at 727, 89 S.Ct. 1394). Given the narrowly defined circumstances under which such limited detentions are constitutionally permissible, we concluded that that rule “simply does not authorize a police officer to intentionally and purposefully elicit information from a criminal suspect.” Id. at 658. Thus, we held in that case, the police’s questioning of the suspect illegally expanded the limited seizure authorized by the Crim. P. 41.1 order beyond what the Fourth Amendment and its Colorado counterpart allow. Id. at 658.
¶44 Having determined that police are constitutionally prohibited from interrogating a suspect detained under Crim. P. 41.1 on less than probable cause, we next considered whether Miranda warnings “sufficiently attenuated the taint of the illegally expanded detention.” Id. Relying on Brown v. Illinois, we concluded that Miranda warnings do not necessarily purge the taint of an underlying Fourth Amendment violation because the exclusionary rule, when used to effectuate the Fourth Amendment, serves interests and policies distinct from those it selves under the Fifth. Id. (citing Brown v. Illinois, 422 U.S. 590, 600-01, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975)). The fact that a suspect received proper Miranda warnings is therefore “only a threshold requirement for a fourth amendment analysis” because, if the Fifth Amendment has been violated, the Fourth Amendment issue would not have to be reached. See id. at 659; Dunaway v. New York, 442 U.S. 200, 217, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979); 6 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 11.4(b), at 378-79 (2012). Beyond this threshold requirement, we identified several factors from Brown to consider when determining whether statements are obtained by exploiting an illegally expanded detention: “The temporal proximity of the arrest and the confession, the presence of intervening circumstances, and, particularly, the purpose and flagrancy of the official misconduct.” Harris, 762 P.2d at 659 (quoting Brown, 422 U.S. at 603-04, 95 S.Ct. 2254).
¶ 45 To analyze these factors, we reasoned that the suspect in Harris began making inculpatory statements immediately after being taken into custody, that there was “no time for any intervening circumstances between the arrest and [the suspect’s] statements,” and that the police, by admission, had intended to interrogate the suspect while executing the Crim. P. 41.1 order. Id. Thus, we suppressed the suspect’s statements because they “resulted from the illegal expansion of the Crim. P. 41.1 order.” Id. Under these circumstances, to admit as evidence the suspect’s statements would allow “law enforcement officers to violate the Fourth Amendment with impunity, safe in the knowledge that they could wash their hands in the procedural safeguards of the Fifth.” Id. (quoting Dunaway, 442 U.S. at 219, 99 S.Ct. 2248).
¶ 46 Turning to this case, I note that the Denver County Court Crim. P. 41.1 order executed by the Denver detectives reflects the constitutional constraints set forth in Harris. The order directed Denver police to take Luna-Solis “into custody” on less than probable cause “for the purpose of completing the specific non-testimonial identification procedures” of obtaining a saliva or blood sample. It admonished police to complete the procedure “as expeditiously as possible” and mandated that “said Defendant [Luna-Solis] is to be detained pursuant to this Order no longer than it takes to obtain the said non-testimonial identification.” The order authorized Denver police to collect nontesti-monial identification evidence but nothing more. Despite this order, Denver detectives detained Luna-Solis in a separate interview room in the Arapahoe County detention facility. They told him that they were there to interrogate him about the Denver assault and questioned him for about twenty-five minutes before executing the Crim. P. 41.1 order. Similar to the circumstances in Harris, Luna-Solis began making statements almost immediately after being detained, there was “no time for any intervening circumstances,” and the Denver detectives, by admission, intended to interrogate Luna-Solis while executing the Crim. P. 41.1 order. See id.
*939¶47 Luna-Solis’s question to the Denver detectives about the Denver assault and his later Miranda waiver do not represent the kind of “intervening circumstances” contemplated by Brown or Harris. Rather, those facts, together with the district court’s finding that Luna-Solis “voluntarily and without solicitation or encouragement” engaged Detective Garcia in conversation, are relevant to whether he voluntarily waived his Fifth Amendment rights under the additional safeguards applicable after invoking his right to counsel. See People v. Ferguson, 227 P.3d. 510, 513 (Colo.2010) (concluding that a suspect who “volitionally initiated conversation” with police after requesting counsel validly waived his Miranda rights (citing Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981))). Because “the voluntariness inquiry is merely a threshold inquiry [and] is not interchangeable with the attenuation inquiry” under the Fourth Amendment, Luna-Solis’s question and Miranda waiver did not constitute intervening circumstances sufficient to attenuate the taint of the illegally expanded detention. See People v. Lewis, 975 P.2d 160, 175 (Colo.1999) (reasoning that no intervening circumstances occurred between the defendant’s illegal arrest and the time he made statements because he was not taken before a magistrate and did not meet with counsel); Harris, 762 P.2d at 658-59; see also 6 LaFave, Search and Seizure § 11.4(b), at 387-90.
¶48 Further, Luna-Solis did not “volunteer” information by asking a question of the Denver detectives about the Denver assault. In Harris, we left open the possibility that some statements of detained suspects may be admissible “where a suspect initiates a conversation with the police and, despite a lack of coercion or interrogation, voluntarily offers them information.” Harris, 762 P.2d at 657. Here, however, Luna-Solis neither initiated a conversation with the Denver detectives nor volunteered information. His statements were made in response to questions by Denver detectives while he was detained under the Crim. P. 41.1 order. Cf. People v. Wilson, 841 P.2d 337, 340 (Colo.App.1992) (upholding admission of defendant’s statements made during nontestimonial identification procedure where he initiated a conversation with police and police had not intended to interrogate him).
¶ 49 Luna-Solis’s presence in the Arapahoe County detention facility awaiting trial does not alter this analysis under the facts of this case. Luna-Solis was in custody awaiting trial on charges stemming from the Arapahoe assault, for which probable cause existed. He was not in custody based on the Denver assault, and Denver police lacked probable cause to arrest Luna-Solis for the Denver assault. Under these circumstances, and consistent with Crim. P. 41.1, the deputy district attorney in Denver proceeded under Crim. P. 41.1 to detain Luna-Solis on less than probable cause, and the Crim. P. 41.1 order reflects that Luna-Solis’s limited detention was based on “reasonable grounds.” Thus, the Denver detectives’ actions to detain Luna-Solis in an interview room in the Arapahoe County detention facility are analogous to the police’s actions to detain the suspect in Harris in the ambulance and hospital. In both eases, police detained suspects on less than probable cause to collect nontes-timonial identification evidence, and, in both cases, the suspects were not free to leave until the Crim. P. 41.1 order was executed. Because Luna-Solis was detained on reasonable grounds, the Denver detectives were required to adhere to the constitutional mandates of Harris and the Crim. P. 41.1 order.
¶ 50 The majority does not dispute the import of Harris. Instead, after reversing the district court’s suppression order on Sixth Amendment grounds, the majority conditions its holding so as not to undermine Harris or the constitutional rights it protects. Maj. op. ¶ 17. The majority does not engage in an analysis under Harris because it is not the subject of this review. Id.
¶ 51 My view is to the contrary. We have been asked to review the propriety of the district court’s suppression order, and appellate courts have discretion to affirm the district court on grounds not raised by the parties or considered by the court. Moody v. People, 159 P.3d 611, 615 (Colo.2007); People v. Aarness, 150 P.3d 1271, 1277 (Colo.2006); People v. Quintana, 882 P.2d 1366, 1371 (Colo.1994). I would exercise that discretion *940here, especially because the district court reached the correct result, albeit through an incorrect analysis.
¶ 52 Therefore, in light of Harris, I would suppress Luna-Solis’s statements because they were obtained in violation of his constitutional rights under the Fourth Amendment and article II, section 7 of the Colorado Constitution. Hence, I respectfully dissent from Part III of the majority opinion.
IV. Suppression of DNA Evidence
¶ 53 The majority next concludes that the district court erred in barring the prosecution from using the DNA evidence collected by the Denver detectives as a sanction for a discovery violation under Crim. P. 16. Maj. op. ¶ 21. I agree with the majority’s conclusion but write separately to explain why.
¶ 54 In my view, no discovery violation occurred because Crim. P. 16, as a discovery rule, presupposes that judicial proceedings have been initiated against the defendant. It is undisputed that no judicial proceedings had been initiated against Luna-Solis stemming from the Denver assault. The deputy district attorney in Denver was under no obligation to provide Luna-Solis or his attorney with notice because he was proceeding under Crim. P. 41.1, which contains no notice requirement. He could not have notified Luna-Solis’s counsel because Luna-Solis was not represented by counsel for the Denver assault, and Luna-Solis had no Sixth Amendment right to the assistance of counsel for the Denver assault. Under these circumstances, Luna-Solis is protected from interrogation by the Fourth Amendment (that is, Harris) and the Fifth Amendment (that is, Miranda) but not his Sixth Amendment right to counsel.
¶ 55 Therefore, I would conclude that the district court erred in suppressing the DNA evidence as a discovery sanction because Crim. P. 16 was inapplicable under these circumstances. Hence, I concur in Part IV of the majority opinion.
V. Conclusion
¶ 56 For these reasons, I respectfully dissent from Part III of the majority opinion and concur in the result as to Part IV.
¶ 57 I am authorized to state that JUSTICE HOBBS joins in the concurrence in part and dissent in part.