18-4-205. Possession of burglary tools.
Statute text
(1) A person commits possession of burglary tools if he 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 intends to use the thing possessed, or knows that some person intends to use the thing possessed, in the commission of such an offense.
(2) Possession of burglary tools is a class 2 misdemeanor, but it is a class 5 felony if the burglary tools were knowingly possessed to facilitate a forcible entry into a residence for the purpose of a physical taking.
History
Source: L. 71: R&RE, p. 427, 1. C.R.S. 1963: 40-4-205. L. 2021: (2) amended, (SB 21-271), ch. 462, p. 3176, 204, effective March 1, 2022.
Annotations
ANNOTATION
Annotations
Annotator's note. Since 18-4-205 is similar to former 40-3-7, C.R.S. 1963, and laws antecedent thereto, relevant cases construing those provisions have been included in the annotations to this section.
The conduct proscribed by this section is sufficiently distinguishable from that prohibited by 18-4-104 to withstand defendant's equal protection challenge. People v. Gurule, 924 P.2d 1164 (Colo. App. 1996).
Statute is not constitutionally overbroad. "Innocent possession" of tools is not prohibited by the statute, and the statute cannot be read to criminalize such conduct. People v. Chastain, 733 P.2d 1206 (Colo. 1987).
"Burglary tools" held not unconstitutionally vague. People v. Chastain, 733 P.2d 1206 (Colo. 1987); People v. Gurule, 924 P.2d 1164 (Colo. App. 1996).
A "pouch" made of a pair of bib overalls that defendant specifically designed and adapted for purposes of facilitating a theft by a physical taking is a burglary tool pursuant to this section. However, mere possession of an item does not implicate the statute. The possession of a designed, adapted, or commonly used tool or other article must be accompanied by an intent to commit a burglary or theft by a physical taking. People v. Gurule, 924 P.2d 1164 (Colo. App. 1996).
Language of this section is explicit. People v. Gnout, 183 Colo. 366, 517 P.2d 394 (1973).
Arrangement of this section in prior compilations is not controlling in construing the section, but rather, courts must look to the language of the statute itself. People v. Gnout, 183 Colo. 366, 517 P.2d 394 (1973).
Information charging defendant with possession of burglary tools held sufficient. People v. Gnout, 183 Colo. 366, 517 P.2d 394 (1973).
Statute does not omit the unlawful act element of the crime. People v. Chastain, 733 P.2d 1206 (Colo. 1987).
Statute does not permit conviction solely on the basis of another's intent but requires intent by the accused or knowledge that another intends to use the tool for a burglarious purpose. People v. Chastain, 733 P.2d 1206 (Colo. 1987).
Tools held admissible. Tools not intrinsically and exclusively burglary tools, but capable of use as such, were admissible in evidence in support of a charge of possession of burglary tools, where other evidence was ample to show actual breaking and entering and felonious intent. Smalley v. People, 116 Colo. 598, 183 P.2d 558 (1947).
State may appropriate burglar tools. Burglar tools are by definition contraband. The state in the exercise of its police power may appropriate, without compensation, property employed in the commission of a crime in order to prevent the continuance of unlawful activity. It is not reasonable to assume that the general assembly intended by this section to permit convicted burglars to retain the tools of their trade. People v. Angerstein, 194 Colo. 376, 572 P.2d 479 (1977).
There is no right to have them returned. If property is legally seized and it is designed or intended for use as a means of committing a criminal offense or the possession of which is illegal, there is no right to have it returned. People v. Angerstein, 194 Colo. 376, 572 P.2d 479 (1977).
The district attorney could not charge under this section for actions that violated the more specific provisions of 12-47.1-825 under the Limited Gaming Act of 1991. Since the act invokes the full extent of the state's police powers, creates a comprehensive and thorough regulatory scheme to control limited gaming, and specifically defines criminal acts related to limited gaming, the general assembly must have intended that actions violating the specified criminal acts would be chargeable only under the Limited Gaming Act or under article 20 of this title, where the criminal provisions of the limited gaming act are repeated verbatim. People v. Warner, 930 P.2d 564 (Colo. 1996).
Applied in Wilcox v. People, 152 Colo. 173, 380 P.2d 912 (1963); People v. Tate, 657 P.2d 955 (Colo. 1983).