OK this is so in my wheelhouse. What lie do you believe Grusing told?
The data itself shows the 'chipmunk hunt', and the left turn on it's face. That is how Grusing knew to ask about the left turn for example. The question is how do you explain it? IMO it is not unreasonable for Grusing to put the prima facie conclusion to BM i.e. that the data simply reflects the location of his phone.
IMO it is not lying that Grusing didn't say "well this data might not be 100% accurate". The data is the data and he asked the suspect for an explanation. It isn't the agents job to give BM exculpatory theories? After all, static drift or inaccurate location data on the left turn is simply speculation. The defendant on the other hand knows what he did, and can answer accurately from personal knowledge. RSBM
As best I can without a searchable copy of the civil complaint, I have pasted below the sections where Morphew claims that Grusing lied to him and elicited statements based on those lies that were used against Morphew in the AA. See specifically, paragraphs marked in red. These claims are part of his larger argument that the AA was substantially false and misleading, and resulted in a finding of probable cause for arrest that had no true factual basis.
I agree with you. Grusing may have prevaricated, but even assuming that the factual allegations about Grusing are true, current case law allows LE to lie about the evidence they have to elicit inculpatory statements from a person of interest. Grusing had no obligation to be fully forthcoming with BM.
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2. False GPS Phone Locations - “Pushpin” Map
214. The Arrest Warrant Affidavit states that Barry chased Suzanne Morphew around their home on May 9, 2020 at 2:44-2:45 p.m. Arrest Affidavit, p. 126.
215. The Arrest Affidavit claims this is the time period when Barry allegedly caused the death of Suzanne.
216. The Arrest Affidavit includes “Attachment 6”, which is described as “An estimate of the activity of Barry's phone as it appears to move from porch to porch, which he [Barry] explained by chasing and shooting a chipmunk.” The following image was presented:
DBM
217. Defendants authoring the Arrest Affidavit knew this was a false and misleading allegation.
218. Defendants knew this was false and misleading because an FBI Report (“the CAST Report”) alerted them to this fact and an FBI Specialist had alerted Defendant Cahill of this in an email, as described below.
219. The above pushpin map, if believed, would mean that Barry was moving 36.8 to 50 miles per hour from point to point, through the walls of his home.
220. If Barry was moving around the walls of his home he would have had to travel even faster than 50 miles an hour.
221. On June 2, 2020, Defendants Cahill and Grusing learned from FBI Special Agent Hoyland that “data” used to “pinpoint” Barry’s movements was unreliable.
222. FBI Special Agent Kevin Hoyland was with the FBI’s Cellular Analysis Survey Team (C.A.S.T.), which interpreted data from Barry’s cell phone.
223. Special Agent Hoyland wrote:
“As an FYI, one of the challenges in determining movement with GPS readings in such a tight area is that there is a phenomenon known as static drift wherein a stationary device can mistakenly be shown to be moving because of the number of satellites taking measurements and their corresponding locations to the stationary device. Or it could be him walking around the property. Just hard to say but I would be cautious in jumping right to the conclusion that he was bouncing around his property at these hours.”
224. The complete June 2, 2020, email from FBI Hoyland is:
DBM
225. As shown above, Agent Grusing forwarded the email to Defendant Cahill the same day he received it.
226. At page 27 of the CAST Report, the FBI illustrates the phenomenon of static drift and cautions that “[m]ore analysis is needed to determine the frequency of such anomalous data in and around the residence.”
227. This critical exculpatory information showed that the Arrest Affidavit statements about Barry supposedly having been moving rapidly around his property were purposely misleading.
228. Defendants authoring the Arrest Affidavit knew this information was highly material and exculpatory.
229. This exculpatory information was purposely omitted from the Arrest Affidavit and the email was concealed from the defense and the court.
230. The Defendant Prosecutors concealed this June 2020 email until it was produced in late January 2022.
231. The Arrest Affidavit included false and misleading statements about GPS phone location data allegedly showing where Barry drove his truck in the early morning hours of May 10, 2020.
232. In the Arrest Affidavit, Defendants stated that Barry’s truck drove nearby where Suzanne’s bicycle helmet was later discovered.
233. Defendants’ theory was that Barry intentionally discarded Suzanne’s helmet in that location in order to “stage” an abduction.
234. Defendants authoring the Arrest Affidavit knew that the GPS phone locator detail was unreliable because of the “static drift” phenomenon.
235. Defendants authoring the Arrest Affidavit also knew that there were no truck telematics5 indicating the truck was in that area between May 9 and May 10.
236. Defendant Cahill expressly warned other Defendants and co-conspirators about the unreliability of such data, including Defendants Graham, Rohrich, Lindsey, Walker, Grusing, and Harris.
237. Defendant Cahill received a recommendation from a technical engineering firm that, even though inaccurate and unreliable, the GPS location data could be used to “squeeze” Barry during interrogations. Defendant Cahill forwarded this recommendation to Defendant Rohrich:
5 “Telematics”is a term describing technology whereby a computer within automobiles and trucks can capture events occurring in and around the vehicle, e.g., doors and windows opening and closing, the motor running and being shut off, etc. and essentially provide a digital blueprint of the vehicle’s activity.
238. Defendants FBI Agents Grusing and Harris lied to Barry about the alleged phone location data during the numerous interrogations with him.
239. Upon information and belief, these interrogations were conducted and/or reviewed and utilized by Defendants Cahill, Graham, Walker, Rohrich, Spezze, Stanley, Lindsey, and other defendants and co-conspirators as described herein, all of whom knew that false and misleading information was being presented in the Affidavit and that material, exculpatory information was being omitted.
240. Defendants authoring the Arrest Affidavit, and other Defendants and co-conspirators whose identities are not known to Mr. Morphew at this time, included false information in the Arrest Affidavit garnered from lying to Barry about his movements on the day on May 10, 2020.
241. The Defendants stated in the Arrest Affidavit that Barry was “blaming.... a chipmunk for why he was running around his house after arriving home at 2:44 PM, and the firing a gun of a .22 caliber to describe his violence towards Suzanne that afternoon and the caliber of the tranquilizer darts.” Arrest Affidavit, p. 125.
242. The Arrest Affidavit does not disclose that the map and the GPS phone data underlying it were fabricated and not based on any reliable science.
243. The “pushpin map” was not the only subject matter in the Arrest Affidavit that relayed false and misleading information about alleged locations of Barry’s phone based on GPS location data.
244. On page 34 and 35, the Arrest Affidavit states:
The location activities registered by Barry's phone were abnormally high in frequency during the late nights and early morning hours of May 8-9, 2020 and May 9-10, 2020 while at the Morphew residence. (Arrest Affidavit, p. 34)...That May 9-10, 2020 night, approximately 210 locations for Barry's phone registered near the Morphew residence, compared to zero-to-two locations on previous nights from May 1st through May 8th. (Arrest Affidavit, p. 35).
245. Just as above, when the Defendants who authored the Arrest Affidavit wrote these statements, they knew they were false and misleading and knew the GPS location data from Barry’s phone (or any phone) was unreliable.
246. In relevant part, the Arrest Affidavit states: (1) “Barry blamed... a chipmunk for why he was running around his house after arriving home at 2:44 PM...” (Arrest Affidavit, p. 125) and (2) “Barry says he is running around the house, most likely chasing Suzanne while she is conscious.” (Arrest Affidavit, p. 126).
247. That is false. Barry did not “blame” a chipmunk, he did not say “he is running around the house,” and certainly did not say he was “most likely chasing Suzanne...”
248. When confronted with the fabricated “pinpoint” map, Barry merely said that he was in the habit of shooting chipmunks.
249. In making that statement, Barry was responding to fictitious and false information being provided to him by Defendants about his supposed movements on May 9, 2020.
250. The above false and misleading information about GPS phone locations and omitted exculpatory information about GPS phone locations were material to a finding of probable cause.
3. Falsehoods and Omissions about Barry’s Phone on May 9, 2020
253. The Defendants who authored the Arrest Affidavit stated that forensic evidence showed that Barry’s phone was turned off or placed on “airplane mode” for 8 hours on May 9, 2020 starting at 2:47 p.m.
254. Defendants authoring the Arrest Affidavit included the “airplane mode” assertingBarry purposefully placed his phone in airplane mode in order to conceal his location while he was hiding Suzanne’s body and evidence of the alleged murder.
255. The Arrest Affidavit alleges that Barry arrived home on Saturday afternoon around 2:30 p.m., at 2:44 p.m. he chased Suzanne around the house, and at 2:47 p.m. he placed his phone in airplane mode.
256. The Arrest Affidavit alleges that Barry intentionally kept his phone in airplane mode throughout the evening until Saturday night at 10:30 pm. Arrest Affidavit, pp. 77, 90, 99.
257. The Arrest Affidavit states: “On May 9th, at 2:47 PM, Barry's phone appears to enter Airplane Mode” (Arrest Affidavit, p. 34).
258. The Arrest Affidavit states: and “On May 9th, at 10:17 PM, an ‘airplane mode off’ event started on Barry's phone” Arrest Affidavit, p. 35.
259. Defendants authoring the Arrest Affidavit mentioned “airplane mode” 24 times in the Affidavit.
260. It is false that the phone was in airplane mode for eight (8) hours as represented by the Defendants authoring the Arrest Affidavit.
261. On June 24 and 25, 2020, Defendants Walker, Cahill, Grusing, Adams, Hysjulien, Burgess and Rohrich, received or were forwarded an email and a chart from a FBI expert that explained the airplane mode phenomenon.
262. The June 24, 2020 email and chart explained that Barry’s phone was not in airplane mode for even one hour, nor intentionally placed in airplane mode, and if it was in airplane mode it was for less than a minute and when the phone was powering down or powering up.
263. The Defendants who authored the Arrest Affidavit did not disclose these highly exculpatory facts in the June 24, 2020 FBI email and chart but instead inserted only the 24 false and misleading statements about the “airplane mode.”
264. The Defendants concealed this June 24, 2020 email and chart analyzing the airplane mode phenomenon from the defense until late January 2022.
265. During Defendants Grusing and Harris’ interviews with Barry in March and April 2021, Defendants Grusing and Harris lied to Barry telling him that he intentionally placed his phone in airplane mode for hours on May 9th to prevent detection of his movements.
266. The Defendants who authored the Arrest Affidavit stated “Barry admitted to running around their property with a gun and placing his phone in Airplane Mode at 2:47 PM.” Arrest Affidavit, p. 2.
267. That is a false statement.
268. On page 75 of the Arrest Affidavit, it states that Barry “demonstrated how he placed his phone in Airplane Mode.” This statement is misleading and included out of context.
269. On March 5, 2021, during the (approximate) 30th interview of Mr. Morphew, FBI Agent Grusing (Grusing) told Barry that his phone was in airplane mode on May 9, 2020, to which Barry told him he did not recall putting his phone in airplane mode.
270. Defendant Grusing then told Barry that his phone was definitively in airplane mode from 2:47 p.m. to 10:18 p.m. on May 9, 2020, and added that if Barry accidentally put his phone on airplane mode, then he also must have accidentally turned it off, questioning Barry’s veracity.
271. In response to these statements, Barry told Defendant Grusing, “It’s the first thing that comes up when you hit settings. If that happened, it was probably an accident. I do not recall that.”
272. The Defendants authoring the Affidavit inserted these false and misleading statements about Barry intentionally putting his phone in airplane mode for eight hours as it was critical to sell their false theory that Barry was attempting to cover up his location, after he supposedly murdered Suzanne right after supposedly chased her around the house at 35-50 miles per hour to subdue her.
273. Furthermore, the Defendants authoring the Arrest Affidavit knew that the area in Colorado – specifically in and around the Morphew home, and the Maysville area to Poncha Springs had virtually no cell phone reception and cellular data is scant and imprecise
274. The Defendants authoring the Arrest Affidavit did not include the exculpatory facts that there is little to no cell reception and the cellular data collected from the area of Barry’s home and Maysville is imprecise.
275. The Defendants authoring the Arrest Affidavit omitted these exculpatory facts as it would have significantly weakened their theory that Barry murdered Suzanne as their theory was largely based on the “alleged” movements of Barry’s phone.
276. The Arrest Affidavit states that Barry’s phone contained “deleted web searches” of pornographic and/or dating sites on January 7, 8, 24, and 25, 2020. Arrest Affidavit, pp. 32-33.
277. By referring to these as “deleted web searches on Barry’s phone,” the Arrest Affidavit implies that Barry was actively searching and/or visiting these sites.
278. This statement was false. These were not manual searches or even visits made to these sites, rather (similar to a pop-up advertisement), his phone was redirected to these sites.
279. The Defendants either knew this inflammatory and irrelevant information was false or utterly failed to conduct a reasonable forensic investigation that would have readily disclosed the true facts.
280. In a footnote, the Defendants authoring the Arrest Affidavit quote Barry’s response when asked if he had ever searched online to meet other women (he replied, “No, never”). Arrest Affidavit, p. 33, footnote 38. Because the true facts had been omitted, the Arrest Affidavit makes it look like Barry was lying, when in fact he was telling the truth and a reasonable forensic investigation would have readily revealed that.
281. The Arrest Affidavit claims Barry had a second cell phone that was not located. “Possible Second Device for Barry.” Arrest Affidavit, p. 42.
282. This statement was false.
283. The Defendants authoring the Arrest Affidavit knew this statement was false as the 2020 Search Warrant Return from Apple provided information to show that was not correct.
284. The Defendants authoring the Arrest Affidavit knew from the 2020 Search Warrant Return from Apple that the “second device” identifier is not a second “device” or phone, but instead likely identifies that Barry and Suzanne’s iPhones were connected to the same iCloud account for a while.
285. This falsehood is significant and material because of the implication that Barry was lying, concealing material evidence, and otherwise behaving in a culpable manner.
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