State v. Gardner

No. 129,439 IN THE COURT OF APPEALS OF THE STATE OF KANSAS STATE OF KANSAS, Appellant, v. TERICA MARJORIE MARIE GARDNER, Appellee. SYLLABUS BY THE COURT 1. The Fifth Amendment to the United States Constitution provides a right against self-incrimination, including the right to have a lawyer present during custodial interrogation and the right to remain silent. 2. To meaningfully protect the right against self-incrimination, law enforcement officers provide prophylactic instructions—which have come to be known as Miranda warnings—that inform a person in custody that they have the right to remain silent, that anything they say can be used against them in a court of law, that they have the right to the presence of an attorney, and that if they cannot afford an attorney one will be appointed for them prior to any questioning if they so desire. 3. Law enforcement officers are free to interview a suspect who is in custody after the suspect has been given proper Miranda warnings and subsequently waives those rights. But if a suspect in custody invokes one of those rights—such as the right to counsel—the interrogation must end. Once the person has unambiguously invoked the 1 right to counsel, the questioning can begin again only after an attorney has been provided or the accused reinitiates with the interrogator. 4. A Miranda warning is required when a person is in custody and subjected to express questioning or its functional equivalent—that is, to any words, actions, or other interrogation techniques (such as leaving a person in an interrogation room for extended periods between interrogation sessions) that law enforcement officers are using to elicit an incriminating response. To limit the ambit of Miranda to express questioning would place a premium on the ingenuity of the police to devise methods of indirect interrogation, rather than to implement the plain mandate of Miranda. Appeal from Shawnee District Court; JAMES M. CROWL, judge. Submitted without oral argument. Opinion filed September 18, 2026. Affirmed and remanded. Michael R. Serra, deputy district attorney, Michael F. Kagay, district attorney, and Kris W. Kobach, attorney general, for appellant. Joseph A. Desch, of Law Office of Joseph A. Desch, of Topeka, for appellee. Before WARNER, C.J., HURST and COBLE, JJ. WARNER, C.J.: This case involves an interlocutory appeal by the State under K.S.A. 22-3603, challenging the district court's pretrial suppression of evidence. The State argues that the district court erred when it found that statements by Terica Gardner to the police during multiple hours of interrogation were inadmissible, as they had been obtained after Gardner unequivocally invoked her right to counsel. After carefully reviewing the record—including the video of the interrogation—and the parties' arguments, we conclude that the record supports the district court's findings that Gardner invoked her right to counsel. We thus affirm the district court's suppression order. 2  PROCEEDINGS LEADING TO SUPPRESSION ORDER In October 2024, a house fire in Topeka resulted in the death of David Blevins. Topeka Fire Department fire investigator Brad Hanika was tasked with investigating the fire, which he believed was started intentionally. He obtained surveillance video from a neighboring structure, and this video showed someone walking away from the residence just seconds before the fire began. Hanika believed the person in the video was Gardner, who had previously been identified as someone who might have been at the house. Hanika interviewed Gardner multiple times in October and early November 2024. On November 14, Gardner was arrested on separate charges and brought into the law enforcement center for questioning. At that time, Gardner was held in an interview room and interviewed by Hanika and a police detective over the course of seven hours. These interviews were all recorded on video. In some of these interviews, Gardner made statements that could be interpreted as acknowledgment that she was present at the residence or had a role in starting the fire that resulted in Blevins' death. In particular, after the interview on November 14, Gardner was arrested and charged with several offenses, including felony first-degree murder, aggravated arson, aggravated burglary of a dwelling, aggravated intimidation of a witness, aggravated battery, criminal threat, domestic battery, and criminal damage to property. As the case against her progressed, Gardner requested a Jackson v. Denno hearing to determine the voluntariness of her statements. See Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964). The State responded with a notice of intent to offer Gardner's statements at trial. The district court held a hearing on these motions in May 2025, where it heard testimony from four law enforcement officers and reviewed the five recorded interviews that the State wished to proffer at trial. The court then took the matter under advisement. 3  About a week later, Gardner filed a motion to suppress "all oral, written, or other non-verbal communications, confessions, statements, admissions, or tests whether inculpatory or exculpatory, alleged to have been made by the accused prior to, contemporaneous with, or subsequent to, the arrest for this matter." In the motion, Gardner argued that all five of the proposed exhibits should be suppressed as being obtained in violation of Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), or as involuntarily made. The district court held a subsequent hearing to announce its ruling on the admissibility of Gardner's statements. The court noted that it was tasked with determining under a totality of the circumstances whether each of Gardner's statements to law enforcement were voluntary. The court noted that the State carried the burden of proof to show the statements were voluntary by a preponderance of the evidence. The district court concluded that Gardner's statements in four interviews— encapsulated in State's Exhibits 1, 2, 3, and 5—could be offered as evidence at trial. But the district court suppressed the evidence of the November 14 interview—shown in State's Exhibit 4—because Gardner "clearly invoked her right to counsel" and that request was not honored by the State. In response to the prosecutor's questions, the district court clarified that the statements in Exhibit 4 were obtained in violation of Miranda and also were involuntary. The State then filed this interlocutory appeal pursuant to K.S.A. 22-3603, which permits an interlocutory appeal from the suppression of a confession or admission. See State v. Mburu, 51 Kan. App. 2d 266, 272, 346 P.3d 1086 (2015). 4  THE SUPPRESSED EXHIBIT Exhibit 4—which is approximately seven hours long—is the only exhibit that is relevant to the State's interlocutory appeal since it was the exhibit that the district court suppressed. This exhibit portrays the events and interactions that occurred in Gardner's interrogation room on November 14. The district court made several findings relating to what that video showed, and most of these findings are undisputed. The district court found—and the parties do not dispute—that the video showed that Gardner was in custody and under arrest, and the interview was a custodial interview. The court also observed that Gardner spent more than seven hours in the interrogation room and was actively interviewed for approximately five of those hours. Throughout the video, Gardner was visibly tired from being up the day before and then arrested during the night. At times, she slept on the floor when she was not being actively interviewed. Sometimes she rambled incoherently, and at other times her speech was understandable (even when no one else was in the room). The district court found that at 7:26 a.m.—or roughly 30 minutes into the video— Gardner knocked on the window of the interrogation room. When someone answered, she asked, "Can I see an attorney?" Twelve minutes later, she asked an officer if she could speak with an investigator she knew. When she could not, she again stated, "I want an attorney then; [give me] an attorney." The officer responded that he would "let [the investigating officers] know when they get here." Immediately after the officer left the room, Gardner verbally expressed that she is entitled to an attorney because she cannot afford an attorney because "that's the law." About 30 minutes later, while Gardner was still alone in the interview room, she again stated, "I asked for an attorney." Investigator Hanika entered the room about one hour and 16 minutes into the video wearing his full uniform, which labeled him as part of the "Fire Police." When he 5 arrived, Gardner yelled out that she just wanted to "get an attorney" as well as some other things that Hanika told her he could not understand. Hanika told her that he wanted to talk to her about "a few different incidents" and that he wanted "to show [her] some video or pictures and see if [she] can help [him] identify people in those." Gardner responded, "Okay." When another detective interviewed Gardner, she told him that she wanted to tell him her "side of the story." The detective again attempted to inform Gardner of her rights. The detective then asked Gardner if she wanted to make a statement about what happened, and he advised her that she could invoke her rights at any time. The district court found that Gardner was aware of her Miranda rights and was trying to invoke her right to an attorney. The court found that Gardner's early interactions with the officer, before Hanika or the other detective arrived, were particularly important because "the officer knew that one purpose of Gardner's custody was that an interrogation was [going] to follow." The officer heard and understood Gardner's request for an attorney and responded by telling her that the investigators would be told about her invoking her right to counsel. The court found that the officer should have relayed that request to the investigating officers, but he failed to do so. The court also found that the investigating officers never acknowledged any request for an attorney or determined that she wished to waive her right to speak to an attorney. The district court ultimately suppressed Exhibit 4 because Gardner was under arrest, placed in an interrogation room at the law enforcement center, and requested an attorney from an officer, but that request was not honored. 6  DISCUSSION Miranda and the constitutional guarantee of the right to counsel For over 60 years, the Supreme Court of the United States has recognized that the Fifth Amendment to the United States Constitution guarantees "'the right to have a lawyer present during custodial interrogation and the right to remain silent.'" State v. Palacio, 309 Kan. 1075, 1081, 442 P.3d 446 (2019); see Miranda, 384 U.S. at 473-74. These protections are extended to the states through the Fourteenth Amendment, and section 10 of the Kansas Bill of Rights also protects people accused of crimes against self- incrimination. See Chavez v. Martinez, 538 U.S. 760, 766, 123 S. Ct. 1994, 155 L. Ed. 2d 984 (2003); Malloy v. Hogan, 378 U.S. 1, 6-11, 84 S. Ct. 1489, 12 L. Ed. 2d 653 (1964); State v. Morton, 286 Kan. 632, 639, 186 P.3d 785 (2008), cert. denied 555 U.S. 1126 (2009). To underscore the importance of these rights, the Kansas Legislature codified the right against self-incrimination in K.S.A. 60-460(f). See State v. Guein, 309 Kan. 1245, 1261-62, 444 P.3d 340 (2019). To meaningfully protect these rights, the United States and Kansas Supreme Courts have adopted "[c]ertain 'procedural safeguards'" that require law enforcement officers to inform people of their rights before arresting them or conducting custodial interrogations. Palacio, 309 Kan. at 1081-82 (quoting Rhode Island v. Innis, 446 U.S. 291, 297, 100 S. Ct. 1682, 64 L. Ed. 2d 297 [1980]). These safeguards—which have come to be known as Miranda warnings—require law enforcement officers to inform a person in custody that they have "the right to remain silent," that anything they say "can be used against [them] in a court of law," that they have "the right to the presence of an attorney, and that if [they] cannot afford an attorney one will be appointed for [them] prior to any questioning if [they] so desire[]." Miranda, 384 U.S. at 479. At their core, the Miranda warnings aim to reduce the risk of coerced confessions. See State v. Fritschen, 7 247 Kan. 592, 597, 802 P.2d 558 (1990) (recognizing the court was concerned with coercive atmosphere inherent to custodial interrogations). As the Miranda Court explained, the invocation of these rights, once given, necessarily pauses all police interrogation until an attorney can be present or until the person unambiguously and voluntarily reinitiates the discussion: "Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. . . . If the individual states that he wants an attorney, the interrogation must cease until an attorney is present. At that time, the individual must have an opportunity to confer with the attorney and to have him present during any subsequent questioning. If the individual cannot obtain an attorney and he indicates that he wants one before speaking to police, they must respect his decision to remain silent." Miranda, 384 U.S. at 473-74. Thus, law enforcement is free to interview a suspect who is in custody after the suspect has been given proper Miranda warnings and subsequently waives those rights. See Davis v. United States, 512 U.S. 452, 458, 114 S. Ct. 2350, 129 L. Ed. 2d 362 (1994); Innis, 446 U.S. at 297; State v. Warledo, 286 Kan. 927, 935, 190 P.3d 937 (2008). But if a suspect in custody invokes one of those rights—such as the right to counsel—the interrogation must end. Miranda, 384 U.S. at 473-74; see State v. Aguirre, 301 Kan. 950, 961, 349 P.3d 1245 (2015). Once the person has unambiguously invoked the right to counsel, the questioning can begin again only after an attorney has been provided "or the accused reinitiates the conversation with the interrogator." State v. Salary, 301 Kan. 586, 604, 343 P.3d 1165 (2015); see Davis, 512 U.S. at 458; Aguirre, 301 Kan. at 961. 8  It is the State's burden to prove that the defendant validly waived his or her previously asserted Fifth Amendment right to counsel. State v. Younger, 320 Kan. 98, 116, 564 P.3d 744 (2025); State v. Gamble, 44 Kan. App. 2d 357, 366, 236 P.3d 541 (2010), rev. denied 291 Kan. 915 (2011). We review requests for attorneys during custodial interrogation by looking for two components: • First, "the suspect 'must articulate his desire to have counsel present sufficiently clearly that [an objectively] reasonable police officer in the circumstances would understand the statement to be a request for an attorney.'" State v. Moore, 311 Kan. 1019, 1035, 469 P.3d 648 (2020). • Second, "'the request must be for assistance with the custodial interrogation, not for subsequent hearings or proceedings.'" 311 Kan. at 1035. On balance, our Supreme Court has explained that these inquiries seek to determine whether a reasonable police officer under the circumstances would understand the suspect's statement as an assertion of a Miranda right. State v. Cline, 295 Kan. 104, 113, 283 P.3d 194 (2012). When the evidence shows that the defendant communicated with the police after receiving Miranda warnings, the court must then determine whether a valid waiver of the right to counsel occurred—'''whether the purported waiver was knowing and intelligent and found to be so under the totality of the circumstances, including the necessary fact that the accused, not the police, reopened the dialogue with the authorities.''' State v. Mattox, 280 Kan. 473, 482, 124 P.3d 6 (2005), cert. denied 547 U.S. 1197 (2006). This determination rests on '''the particular facts and circumstances surrounding [the] case, including the background, experience, and conduct of the accused.'" 280 Kan. at 482. 9  The district court found that Gardner had made a specific and unambiguous request for counsel before questioning began; thus, the interrogation violated Gardner's Miranda rights. After a request for clarification from the State, the district court noted that it also found Gardner's statements to be involuntary. The State contests both findings on appeal, arguing that Gardner did not unequivocally invoke her right to counsel and that the evidence submitted to the district court shows no evidence of police coercion. Gardner claims that the State is merely asking this court to reweigh the facts, not to assess whether the district court's findings are supported by substantial competent evidence. Our review of a district court's decision on a motion to suppress evidence has two components. First, we review the factual underpinnings of the decision to determine whether they are supported by substantial competent evidence. Second, we review the ultimate legal conclusion de novo. Younger, 320 Kan. at 115. Substantial competent evidence is legal and relevant evidence that a reasonable person could accept as adequate to support a conclusion. State v. Smith, 312 Kan. 876, 887, 482 P.3d 586 (2021). It "does not require evidence to prove a fact; rather, it simply requires evidence to sufficiently support the fact-finder's conclusion." State v. Morley, 312 Kan. 702, 712, 479 P.3d 928 (2021). When the material facts supporting a district court's decision on a motion to suppress evidence are not in dispute, the ultimate question of whether to suppress is a question of law over which an appellate court has unlimited review. State v. Mendez, 319 Kan. 718, 735-36, 559 P.3d 792 (2024). The record does not reveal whether Gardner was given Miranda warnings at the time of her arrest and before being placed in the interrogation room at the law enforcement center. But all parties agree that Gardner was under arrest, in custody, and placed in an interrogation room. And as the district court found, Gardner did not appear to be tracking when Hanika and the other detective attempted to provide her Miranda warnings in the interrogation room and instead would interrupt their questions or move to 10 a different topic. Accord State v. Schultz, 289 Kan. 334, 343, 212 P.3d 150 (2009) ("The absence of Miranda warnings during a custodial interrogation raises a nearly irrebuttable presumption of police coercion of ensuing statements; introduction of such coerced statements into evidence impairs a criminal defendant's Fifth Amendment rights."). Gardner's clear invocation of the right The question before us is whether the record supports the district court's finding that Gardner unambiguously invoked her right to an attorney. The State appears to agree that Gardner had been arrested, was in custody, and asked for an attorney. But it downplays the importance of these facts, arguing that the request for counsel was unclear and asserting that Hanika and the other interviewing detective appeared unaware of her request for an attorney. Like the district court, we do not find these arguments persuasive. The State first asserts that Gardner's invocation of her right to counsel was ambiguous. It notes that at one point when Gardner was talking to an officer early in the video, she states that if she could not speak to an investigator she requested, then she wanted an attorney. Thus, the State argues, it was unclear whether Gardner was truly invoking her Fifth Amendment rights. We disagree. The district court did not find the specific request referenced by the State to be unclear. And even if it were, the statement the State points to was preceded and followed by unambiguous requests for counsel. About 10 minutes earlier, Gardner had asked, "Can I see an attorney?" And following the interaction, the State noted that Gardner clearly and unambiguously informed a police officer who came into the interrogation room, "I want an attorney." The police officer told her that he would let the investigating officers know when they arrived. This response indicates that the officer understood that Gardner had invoked her request to counsel. 11  After the request, Gardner remained in the locked interrogation room for about 45 minutes before Hanika or the other detective arrived. The district court's finding that Gardner was exhibiting signs of exhaustion and mental illness is confirmed by the video of the interrogation. Gardner invoked her Miranda right to counsel numerous times, and she was assured that her request would be communicated to the interrogating officers. But no attorney was provided. Neither did the officers conducting the interviews acknowledge or address her request. After Hanika arrived, Gardner again invoked her right to counsel when she informed him that she wanted an attorney. Hanika never specifically acknowledged her request but instead persuaded Gardner to agree to talk with him. The State also argues that Gardner reinitiated the interrogation by agreeing to talk with the investigating officers and tell her side of the story. But neither interrogating officer received an express agreement to waive Gardner's Miranda rights. Nor did either officer acknowledge her request for counsel or ensure that she was willing to reinitiate. "'A valid waiver of a previously asserted right cannot be established by showing only that the suspect responded to further police-initiated custodial interrogation, even if the suspect has been advised of his rights.'" Palacio, 309 Kan. at 1083. The State cannot satisfy its burden by merely showing that Gardner responded to further police-initiated custodial interrogation after being again advised of her rights. Gamble, 44 Kan. App. 2d at 366 (citing Edwards v. Arizona, 451 U.S. 477, 484, 101 S. Ct. 1880, 68 L. Ed. 2d 378, reh. denied 452 U.S. 973 [1981]). In Aguirre, our Supreme Court emphasized the importance of ensuring that a suspect was willing to reinitiate after a request for counsel: "[O]ne potential common coloring fact is that the suspect continued to answer questions after the alleged rights invocation, as occurred here. The trial court in this case stated that 12  it was partially influenced by Aguirre's responses to the detectives' post-invocation questions in which he said he was still willing to talk to them. But the United States Supreme Court has held 'that, under the clear logical force of settled precedent, an accused's postrequest responses to further interrogation may not be used to cast retrospective doubt on the clarity of the initial request itself.' Smith v. Illinois, 469 U.S. 91, 100, 105 S. Ct. 490, 83 L. Ed. 2d 488 (1984). In other words, if the interrogators simply ignore the suspect's invocation of rights and continue to ask questions, the suspect's compliance with the further questioning does not invalidate or render equivocal the prior invocation of rights." Aguirre, 301 Kan. at 957-58. In this case, it is undisputed that Gardner was in custody and that she requested to speak to an attorney. Then, possibly unaware of Gardner's assertion of her right to another officer, both Hanika and another detective interrogated Gardner for a combined five hours without first ascertaining whether she was willing to speak with them despite her unequivocal invocation of her right to counsel. The district court seemed to give the interrogating officers the benefit of the doubt that her assertion of her right to counsel had not been communicated to them. But this alleged breakdown in communication does not excuse the interrogating officers' failure to ensure that Gardner wished to continue with the interview despite her previous request for counsel. We conclude that the district court's findings—that Gardner unequivocally invoked her right to counsel to law enforcement and that the interrogation continued despite her assertion of her right—are supported by substantial competent evidence. Based on these findings, the district court correctly concluded that the subsequent interrogation violated Gardner's Fifth Amendment rights. We affirm the court's suppression of Exhibit 4. Gardner's statements when left alone in the interrogation room The State also argues that the district court erred in suppressing the unsolicited statements that Gardner made to herself while in the interview room. At the conclusion of 13 the hearing at which the district court gave its oral ruling, the prosecutor asked whether the district court's ruling to suppress evidence included the statements that Gardner made while not in the presence of police officers, and the district court responded that it did. A Miranda warning is required when a person is in custody and "subjected to either express questioning or its functional equivalent." Innis, 446 U.S. at 300-01. The United States Supreme Court in Innis explained that Miranda's concerns regarding custodial interrogation were that the "'interrogation environment' created by the interplay of interrogation and custody would 'subjugate the individual to the will of his examiner' and thereby undermine the privilege against self-incrimination." Innis, 446 U.S. at 299 (quoting Miranda, 384 U.S. at 457-58). Innis recognized that these concerns in the custodial setting—that is, at a law enforcement center or its equivalent—extended not merely to questioning itself, but to various "techniques of persuasion, no less than express questioning." 446 U.S. at 299. The Court recognized, however, that someone in custody might decide voluntarily to provide additional information to the police, and Miranda did not prohibit law enforcement from acting on those statements. And a statement "'given freely and voluntarily without any compelling influences is . . . admissible in evidence.'" Innis, 446 U.S. at 299-300 (quoting Miranda, 384 U.S. at 478). As such, Miranda protections attach "whenever a person in custody is subjected to either express questioning or its functional equivalent"—that is, "to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are likely to elicit an incriminating response." Innis, 446 U.S. at 300-01. The State argues that even if—as we have found—Gardner's statements to the interrogating officers must be suppressed, the statements she made when alone in the interrogation room were not elicited by any police action and thus are admissible. For support, the State points to the Kansas Supreme Court's recent decision in Younger, 14 where the court concluded that Miranda did not prevent the admissibility of a recording of statements made by a defendant sitting alone in the back of a patrol car following an arrest. Younger, 320 Kan. at 117-18. The facts in Younger provide some guidance. There, police were investigating the killings of an elderly couple. The defendant, Kimberly Younger, followed the police officers and kept showing up at the places they were investigating. After she attempted to prevent their entry into an apartment and became belligerent, an officer arrested her and placed her in the back of his patrol car so he could continue inspecting the property but did not provide her with any Miranda warnings. He then turned on the car's audio and video recording devices, left Younger, and continued his investigation. While in the car, Younger made various statements that tied her to the crimes. Younger sought to suppress these statements, claiming that they were obtained in violation of her Fifth Amendment rights as articulated in Miranda. But the Supreme Court disagreed, explaining that Miranda does not provide protection to all statements made by a suspect after their arrest. Younger, 320 Kan. at 117. And courts around the country have found that defendants' unelicited statements made sitting in police cars were not subject to Miranda's protections. See 320 Kan. at 118. The Younger court explained that "[n]o one was present when Younger made her statements, and no one was asking her questions. The procedural safeguards of Miranda are not required when a suspect is simply taken into custody; they only begin to operate when a suspect in custody is subjected to interrogation." Younger, 320 Kan. at 117. "When officers say nothing at all to prompt spontaneous statements from a suspect, there is no basis for finding even subtle compulsion." 320 Kan. at 117-18. The court then found that because Younger's statements in the car were voluntary, those statements were admissible. 320 Kan. at 118. Returning to the facts before us, the State compares Gardner's statements made while she was alone in the interrogation room to Younger's statements to herself in the 15 back of the patrol car and urges us to find that the statements here are similarly admissible. But there are several important distinctions between this case and Younger that lead us to a different conclusion. Gardner's statements—both to herself and to the interrogating officers—were made not in a patrol car, but in an interrogation room at the law enforcement center. The State does not indicate which of Gardner's statements during the seven-hour recording it believes are inculpatory, but our review shows that Gardner did not offer any information before Hanika entered the room and initiated his interrogation. As we have noted, this was after Gardner invoked her right to an attorney. This is a markedly different situation from a defendant sitting by herself in a car and repeatedly making inculpatory statements before invoking her right to an attorney and before being interrogated. Nor are we willing to draw a distinction, once Hanika commenced his questioning, between statements Gardner made during the active interrogation to an officer or to herself between active interrogation sessions. If we were to draw the line the State requests, the result would be that officers could conduct interrogations in violation of defendants' Fifth Amendment rights in the hopes that the defendant would provide inculpatory information during breaks between active questioning. Rather, once an interrogation commences, Miranda safeguards persons in custody against all "techniques of persuasion," including leaving a person alone in the interrogation room for extended periods of time between interrogation sessions. Innis, 446 U.S. at 299. "To limit the ambit of Miranda to express questioning would 'place a premium on the ingenuity of the police to devise methods of indirect interrogation, rather than to implement the plain mandate of Miranda.'" Innis, 446 U.S. at 299 n.3. The district court correctly found that, once Gardner had invoked her right to an attorney, the Fifth Amendment and Miranda prohibited the State from conducting further custodial interrogation until she was provided counsel. The record supports the district 16 court's findings that Gardner was not provided an attorney and did not unequivocally and voluntarily initiate further discussion with the police. The court did not err in suppressing the video of that interrogation. Because we have found that the district court did not err in suppressing Exhibit 4 in light of the violation of Gardner's right to counsel, we need not address the court's second and alternative conclusion that Gardner's statements during the interrogation were involuntary. We affirm the district court's suppression order and remand the case for further proceedings. Affirmed and remanded. 17