Burglary is defined as the unauthorized entry into a dwelling, building or other structure with the intent to commit crimes within. This includes breaking into a house in the middle of the night, forcing oneself into a business after hours, or otherwise trying to access a prohibited area like a vault or safe. These crimes generally involve “breaking and entering”, meaning that the offender often has to get around some kind of lock or barrier. To accomplish this task, the offender often needs to possess certain burglar’s tools to get around these restrictions. Independent of any other crime committed, possession of burglar’s tools is a serious criminal offense in Michigan that can result in a lengthy incarceration if convicted.
The Michigan Penal Code provides the following:
- “Any person who shall knowingly have in his possession any nitroglycerine, or other explosive, thermite, engine, machine, tool or implement, device, chemical or substance, adapted and designed for cutting or burning through, forcing or breaking open any building, room, vault, safe or other depository, in order to steal therefrom any money or other property, knowing the same to be adapted and designed for the purpose aforesaid, with intent to use or employ the same for the purpose aforesaid, shall be guilty of a felony, punishable by imprisonment in the state prison not more than 10 years.” MCL 750.116.
A person is guilty of possession of burglar’s tools, contrary to MCL 750.116, if the prosecutor can prove all of the following elements beyond a reasonable doubt (Michigan Criminal Jury Instruction 25.5):
- First, that the instruments involved were burglary tools. A burglary tool is any tool or instrument or chemical, explosive, or other substance adapted and designed for breaking and entering. “Adapted and designed” means that the tools are not only capable of being used for a breaking and entering but are also designed or expressly planned to be used for this purpose.
- Second, that the individual knowingly possessed burglary tools.
- Third, that when he or she possessed the tools, he or she intended to use them to break and enter a building, room, vault, safe or other depository.
“The offense of possession of burglar’s tools is a specific intent crime, for conviction of which it must be shown that the defendant intended to employ the tools for the illegal purpose.” People v Rigsby, 95 Mich App 95, 97; 284 NW2d 499 (1979). It is not uncommon for multiple individuals to be charged with possession of the same burglar’s tools if they were all present at arrest or thought by the prosecutor to be “in on” the illegal activity. However, the prosecutor must prove beyond a reasonable doubt that the aider and abettor of the specific intent crime of burglar’s tools, “if not himself possessed of the requisite specific intent, must be shown to have rendered his aid and assistance to the principal actor with the knowledge that the principal himself possessed the intent necessary to be guilty of the crime.” Id at 97.
In People v Dorrington, 221 Mich 571; 191 NW 831 (1923), the Michigan Supreme Court stated:
- “The term ‘adapted and designed’ means something more than mere common household articles capable of use in breaking and entering. To come within the statute, the tools must not only be adapted, that is, capable of being used in breaking and entering, but as well designed, that is, contrived or taken to be employed for such purpose.” Id at 574.
The simple use and ownership of regular household items does not constitute the crime of possession of burglar’s tools by itself. In Dorrington, the Michigan Supreme Court concluded that the defendant’s house keys, alarm clock with battery, and knitting needles were not burglary tools, because there was no evidence that the defendant intended to use them in a burglary and that because of the items’ common household nature they could not be presumed to be used for the purpose of breaking and entering. Id at 574-575.
On the other hand, whether or not an item is “adapted and designed” to be a burglar’s tool can depend of the circumstances of the arrest. In People v Gross, 118 Mich App 161; 324 NW2d 557 (1982), the defendant appealed his conviction on the grounds that he only possessed an ordinary crowbar. The Michigan Court of Appeals disagreed and found that an ordinary crowbar was a burglary tool adapted and designed for an illegal purpose where the arresting officer testified that he observed the defendant using the crowbar during the burglary to pry off a coin unit on a pool table, and to smash the glass on pinball machines, a jukebox, and a cigarette machine. Id at 167. Likewise, in People v Ross, 39 Mich App 697; 198 NW2d 439 (1972), the Michigan Court of Appeals found that a chisel, hammer and flashlight were burglar’s tools when evidence showed that the defendant possessed the chisel near the area of the offense, there were pry marks on the door and on the safe, and that the glass in the door was broken. Id at 699-700.
Furthermore, the tool must be adapted and designed for the use of breaking open “any building, room, vault, safe or other depository”. What is a “depository”? In People v Smith, 36 Mich App 180; 193 NW2d 397 (1971), the Michigan Court of Appeals found that the trunk of an automobile is included in the words “other depository” because it “is clearly a place where things are deposited or stored for safekeeping or convenience.” Id at 184. Likewise, the ground and filed channel lock pliers that the defendant possessed in that case was considered a burglar tool because the purpose was to enter the trunk. In People v Osby, 291 Mich App 412; 804 NW2d 903 (2011, the definition of “depository” was expanded further to include the entire motor vehicle. In that case, the defendant was arrested for smashing car windows to steal the items within. When he was arrested, he was found with a “window punch” on his person, which led to a conviction for possession of burglar’s tools. The Michigan Court of Appeals found there was sufficient evidence to convict on possession of burglar’s tools because the defendant was burglarizing motor vehicles which qualified as a “depository” because “the average person locks the vehicle and assumes that the contents will be relatively safe.” Id at 415.
A skilled criminal defense lawyer can assert many possible defenses to a charge of possession of burglar’s tools:
- TOOLS POSSESSED FOR LEGITIMATE PURPOSE – It would be difficult for a prosecutor to show a person possessed tools “adapted and designed” for burglary when he or she kept crowbars, hammers and torches in his vehicle while gainfully employed as a builder, handyman or contractor.
- ALIBI OR MISTAKEN IDENTITY – The defendant may assert that he was in another location at the date and time that the burglary occurred, provided that there are sufficient witnesses and proper notice to the prosecutor to establish the alibi. Therefore, the fact that he or she possessed tools that could be used for a break-in at the time of police intervention is not meaningful if there is little evidence to connect him or her to a crime that many have occurred.
- DURESS, COERCION OR INDUCEMENT BY ANOTHER – If you were forced or manipulated into participating with a burglary due to the influence of another person, then you may have a defense to the prosecutor’s required showing that you had the mindset to commit a crime, especially if the other person was using your tools.
A charge of possession of burglar’s tools can have serious consequences to your livelihood and freedom. You can’t leave anything to chance. You must have the very best legal representation from the beginning to ensure the best outcome in your case.
If you or a loved one are accused of any crime and need legal representation, then do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.
