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Possession of Burglary Tools

What review of the crime of burglary would be complete without an analysis of the oft misunderstood Possession of Burglary Tools? This is a third degree felony, and carries a maximum prison sentence of 5 years. There are three elements to this crime, as laid out in Florida Statutes 810.06 (2009), a person (1) intends to commit a burglary; (2) has possession of tools that are intended to be used in the commission of said burglary, and (3) the person does some overt act toward the commission of a burglary.

Police often assume that any tool used to steal something is a burglary tool, but the cops are wrong. Burglary tools are only those tools used to unlawfully enter a dwelling, structure, or conveyance. That's the nature of the term burglary, to unlawfully enter. So, let's see how this has played out in some real life examples.

In Calliar v. State, 760 So. 2d 885 (Fla. 1999), the Florida Supreme Court reviewed a possession of burglary tools case (rarely will you see a Supreme Court opinion on burglary tools).  Calliar was arrested and convicted of entering a fenced-in area of a middle school through an open gate.  Once inside the fenced-in area, he then attempted to break the chain of a bicycle with wire cutters and a screwdriver. The wire cutters and screwdrivers were the alleged burglary tools. The Florida Supreme Court overturned the conviction, holding that the crime of possession of burglary tools requires proof that the tools were used (or intended to be used) to unlawfully enter the premises. They reasoned that the burglary tools statute "does not encompass, however, any item that may be used to commit some other offense once the burglary has been accomplished, even if that "other offense" is the offense that the defendant intended to commit once he had accomplished the burglary." Id. at 887.

Thus, we're led back to the original definition of burglary--to enter or remain in a dwelling, a structure, or a conveyance with the intent to commit an offense therein. Section 810.02(1), Florida Statutes. Once Calliar entered the fenced school bike area, he committed a burglary because he unlawfully entered to commit the offense of theft. The tools he brought along to complete the theft portion (once the burglary was completed) are not a crime to possess. Id.

Misconceptions regarding possession of burglary tools are amplified by television and movies. How many times have we seen the mission impossible team put on their gloves, collect their gadgets, and go steal some diamonds in some exotic European town? Under Florida law, only the gadgets used for "unlawful entry" are burglary tools.  The gadgets used to steal the Mona Lisa are not burglary tools.

Let's examine a case involving three alleged burglary tools; (1) the wearing of gloves, (2) a crowbar, and (3) a flashlight. In Brooks v. State, 23 So. 3d 1227 (Fla. 2nd DCA 2009), Brooks was convicted of possession of burglary tools for possessing the above three items, based upon his entry into a backyard shed. It was the victim that reported Brooks as a suspicious person, walking his bike early in the morning. The caller then went into his backyard and saw Brooks flee from his open shed, noting his bike was removed from the shed, as well as some power tools.

Brooks successfully argued that his gloves were not burglary tools, as Florida Statute Section 810.06 specifically exempts items of personal apparel from being prosecuted as burglary tools. The next item up for analysis was the flashlight. Again, the appeals court found no evidence that the flashlight was used to gain entry to the shed. The owner testified that the shed was open, and that brings us to the final item, a crowbar. Because the crowbar was not necessary to open the shed, the court found that mere possession of it did not constitute a crime. Id. Brooks' conviction for possession of burglary tools was overturned.

The bottom line here is that burglary tools must be tools that are going to be used to gain access to a dwelling, structure, or conveyance. If the tools were not intended to be used to gain access, then they are not burglary tools, and such charges should be dismissed. Remember, simple possession of suspicious stuff--standing alone--does not constitute a crime, there must be an intent to use the item in an illegal way (more specifically, to gain unlawful entry). And remember, you can always call your friendly local criminal defense attorney to discuss these matters. Thanks.

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