Definition of Burglary Tools Possession

Under Section 810.06, Florida Statutes, it is unlawful for a person have in his or her possession any tool, machine, or implement with intent to use the tools, machines, or implements (or allow others to use them) to commit a burglary or a trespass.

Required Proof

To prove the crime of possession of burglary tools in Florida, the prosecution must establish the following three elements beyond a reasonable doubt:

  1. The defendant intended to commit a burglary or trespass;
  2. The defendant had in his or her possession a tool, machine, or implement that he or she intended to use, or allow to be used, in the commission of a burglary or trespass;
  3. The defendant did some overt act toward the commission of a burglary or trespass.
    • See Fla. Std. Jury Instr. (Crim) 13.2.

Nature of the Offense

Florida’s burglary tool statute actually describes and prohibits a crime in the nature of an attempt.  In effect, it criminalizes an attempt to commit a burglary or trespass, which is discerned through the possession of tools or devices coupled with the defendant’s intent to use those tools in the commission of the crime.  Thomas v. State, 531 So.2d 708, 13 Fla. L. Weekly 464 (Fla. 1988)

Intended Use of Tools

In order for an object to constitute a burglary tool, the prosecution must show that the defendant used or actually intended to use the object to commit a burglary or trespass. Calliar v. State, 760 So. 2d 885, 886-87 (Fla. 1999).

A conviction cannot be sustained upon a mere showing that the defendant possessed the tool to commit some other offense, such as theft, once the burglary or trespass had already occurred.  Id. at 887-88.

In Latimore v. State, 753 So.2d 690, 691 (Fla. 4th DCA 2000), a defendant was seen, at night, trying to remove a radio from the dashboard of a vehicle. There was no evidence that he had used the flashlight in any way in attempting to commit burglary or trespass.  The Fourth District held that, in the absence of proof as to the use or intended use of the flashlight, a conviction for Possession of Burglary Tools could not be sustained. Id. at 692.

Circumstantial Evidence of Intent

The intent of a defendant in possessing certain ‘tools’ may be gleaned from the “totality of circumstances, including the context in which an object is to be used and the actions of the accused.”  Green vs. State, 591 So. 2d 965, 967 (Fla. 1st DCA 1991).

Household or Dual-Use Items

Common household objects, which serve a lawful or dual-use purpose, may be classified as burglary tools if the evidence establishes that they are used or intended to be used to commit a burglary or trespass. Green v. State, 604 So.2d 471 (Fla., 1992). Bolt cutters, screwdrivers, and other household items are some of the most common examples.  Id.

Personal Apparel

The Florida Supreme Court has held that items of personal apparel, such as common gloves, are not included under the terms ‘tool, machine, or implement’ as used in section 810.06.  Green v. State, 604 So. 2d 471 (Fla. 1992).

Although gloves can provide a means for burglars to avoid detection (i.e. fingerprints), they and other items of personal apparel are not objects which actually facilitate the breaking and entering of a dwelling.  Id.

Penalties for the Offense

Under Florida law, Possession of Burglary Tools is a third degree felony, with penalties that may include up to 5 years in prison or five years of probation, and a $5,000 fine.

Defenses to Burglary Tool Possession

There are many defenses available to contest a Burglary Tools possession charge in Florida, and no plea should ever be made without speaking to a qualified criminal defense attorney. Some of the more common defenses can include the following:

  • No Proof of Intent- it is a required element of possession of burglary tools that the defendant have the intent, not only to commit a trespass or burglary while burglary tools are in the defendant’s possession, but also to actually use the tools or other instrumentalities in the commission of the trespass or burglary. This creates dual intent burden for the State attorney and a potentially strong evidentiary defense for the accused. See Brooks v. State, 23 So. 3d 1227 (Fla. 2d DCA 2009) (the fact that a defendant was in possession of a flashlight after breaking into an open shed was insufficient to support a conviction for possession of burglary tools because the State failed to present evidence that he intended to use the flashlight to commit the burglary);
  • Burglary Tools Not in Defendant’s Possession- where the burglary tools are not in the physical possession of the accused (placed in a car or concealed in another location), the State may be unable to prove intent to use the tools in the commission of alleged burglary or trespass;
  • No Evidence That the Tools Were Used in the Course of an Attempt- if there is no evidence that the accused, in a course of an attempted trespass or burglary, ever used the burglary tool(s) in question, it will often be difficult for the State to present sufficient proof of intent to use such tools in the commission of the offense. See Strachn v. State, 661 So. 2d 1255, 1256 (Fla. 3d DCA 1995) (State failed to present a prima facie case of possession burglary tools where the defendant was never observed by the police shining the flashlight into any of the motel rooms, including the room he attempted burglarize);
  • No Overt Act- a conviction for possession of burglary tools can not be sustained unless the defendant engages in or causes some overt act toward commission of burglary beyond merely thinking or talking about it;
  • State Relying Upon Circumstantial Evidence- when evidence of the intent necessary for possession of burglary tools is circumstantial, the State must prove that the evidence is inconsistent with any reasonable hypothesis of innocence. Failure to do so will result in an acquittal.

Importance of an Attorney

If you have been charged with possession of burglary tools, an attorney is critical for identifying legal and factual defenses that may be used in your case.  Contact Hussein & Webber, PL today for a free consultation.  Our law firm handles cases throughout Northeast and Central Florida.