§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.



  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.



  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.