§708-812 Possession of burglar's tools. (1) A person commits the offense of possession of burglar's tools if:

(a) The person knowingly possesses any explosive, tool, instrument, or other article adapted, designed, or commonly used for committing or facilitating the commission of an offense involving forcible entry into premises or theft by a physical taking, and the person intends to use the explosive, tool, instrument, or article, or knows some person intends ultimately to use it, in the commission of the offense of the nature described aforesaid; or

(b) The person knowingly possesses any master key, unless authorized, and the person intends to use the master key or knows some person intends ultimately to use it, in the commission of an offense involving entry into premises or theft by a physical taking.

(2) Possession of burglar's tools is a misdemeanor.

(3) A master key taken in evidence shall be impounded by the court and returned to the owner of the locks or premises which the key operates. [L 1972, c 9, pt of §1; am L 1978, c 221, §2; gen ch 1993]

COMMENTARY ON §708-812

This offense is largely inchoate in nature and as such it might have been rationally grouped with other anticipatory offenses in chapter 705. However, because it is closely related to burglary, we have placed it here for related treatment in matters such as language and sentence.

This section provides a vehicle for punishing those who possess or traffic in devices adapted, designed or commonly used in the commission of offenses involving forcible entry or theft by physical taking. The person who possesses the designated type of device with intent to use the same in the proscribed manner is covered--and so is the manufacturer, distributor, and transporter who deals in such devices if he possesses the same with knowledge "that some person intends ultimately to use it" in the commission of one or more of the offenses for which it is adapted, designed, or commonly used.

Previous Hawaii law did not have an independent offense dealing with possession of burglar's tools; this section, therefore, represents an addition to our law.

SUPPLEMENTAL COMMENTARY ON §708-812

Act 221, Session Laws 1978, inserted the provisions relating to master keys to help curb burglaries involving the use of such keys, which activities the legislature found to be a significant problem particularly in hotels and apartment buildings.

Case Notes

Subsection (1)(a) not unconstitutionally overbroad where defendant's challenge to subsection (1)(a) was grounded in hypothetical conduct in which defendant was not involved. 104 H. 462, 92 P.3d 471 (2004).

Subsection (1)(a) not unconstitutionally vague as it describes the proscribed conduct in ordinary and understandable terms specifying the type of items to be possessed and limiting and defining the offenses to which this section applies to those involving forcible entry into premises or theft by physical taking; it also adequately informs a person on how to avoid committing the offense by not employing the items with the culpable intent set forth in this section. 104 H. 462, 92 P.3d 471 (2004).

Conviction under subsection (1)(a) cannot be sustained unless the State establishes beyond a reasonable doubt that the defendant knowingly possessed an explosive, tool, instrument, or other article; had knowledge that the tools could be used to commit a burglary; and had the intent to use the tools, or knew that some other person intended to use the tools to commit a burglary. 97 H. 323 (App.), 37 P.3d 572 (2001).