Defenses to Possession of Burglary Tools in Florida

July 18, 2025 Don Pumphrey, Jr. Criminal Defense, Theft/Property Crimes Social Share

In Florida, burglary is considered a very serious felony. But a lesser-known offense than (and lesser-included offense of) burglary is possession of burglary tools (Fla. Stat. Section 810.06) – which is itself a very serious felony. 

If someone is charged with possession of burglary tools in Florida, this may initially seem like a hopeless situation. However, there are many defenses that exist to an allegation of possession of burglary tools, one or more of which may be applicable in a given case. This blog will explore defenses to a charge of possession of burglary tools in Florida (Fla. Stat. Section 810.06).

For someone to be proven guilty of possession of burglary tools, the State must prove all of the following elements beyond a reasonable doubt:

• The defendant intended to commit a burglary or trespass at the time of possession of the tools
• The defendant had in their possession a “machine, tool, or implement’ that they intended to use (or allow to be used) in the commission of a burglary or trespass
• The defendant must have performed an overt act towards the commission of the burglary or trespass which goes beyond “mere preparation”

Note: Mere preparation is defined as devising or arranging the means or measures necessary to commit a crime. An overt act consists of some movement towards committing the crime that comes after mere preparation – but it does not have to be the last possible act towards completing the crime. Berger v. State, 259 So. 3d 933 (Fla. 5th DCA 2018).

Possession of burglary tools is a third-degree felony in Florida, punishable by up to 5 years in prison and a $5,000 fine.

For someone to be found guilty of possession of burglary tools, the underlying offense they must have completed or overtly acted to complete must be burglary or trespass. Under Florida law:

• Burglary means entering a dwelling, a structure, or a conveyance with the intent to commit an offense therein, unless the premises are at the time open to the public or the defendant is licensed or invited to enter (Fla. Stat. Section 810.02(1)(b))
• Trespassing involves willful, unauthorized or unlicensed entry or remaining on a property (including within a structure or conveyance)(Fla. Stat. Section 810.08).

As there is no list under Florida law as to what can constitute a burglary tool, whether an object is/was a burglary tool is evaluated based on the totality of the circumstances. The State must prove that the defendant actually intended to use the tools to commit the crime of burglary or trespass. Calliar v. State, 760 So.2d 885 (Fla. 1999). 

Some common examples of burglary tools may include:

• Lock picks
• Bolt cutters
• Crowbars 
• Scewdrivers
• Masks or disguises

Various legal defenses exist to the charge of possession of burglary tools. One of the most common is that there was a lack of intent to use the alleged tools in a burglary or trespass. Tools (which may include common items like hammers or screwdrivers) may be classified as burglary tools only if the State proves beyond a reasonable doubt that they were used or intended to be used in a burglary or trespass. Preston v. State, 373 So.2d 451 (Fla. 2d. DCA 1979)

Another defense is lawful possession of the tools. In a case involving a charge of possession of burglary tools, it must be proven beyond a reasonable doubt that the tools were in the defendant’s possession for the purpose of burglary or trespass. This can be an especially strong defense if the defendant works in a tool-heavy occupation (roadside assistance, mechanic, etc.).

An additional defense is lack of possession. If the State does not catch someone in direct possession of the tools and they are instead found in a common area (such as a car or home), a prosecution may proceed on a theory of constructive possession. 

The State must prove all of the following beyond a reasonable doubt when charging possession of burglary tools on a theory of constructive possession (Nugent v. State, 275 So.3d 721 (Fla 2d. DCA 2019)):

• The defendant had knowledge of the burglary tools
• The defendant had the ability to exercise dominion and control over it
• The defendant had knowledge of the illicit (illegal) nature of tools (use or intended use in a burglary or trespass)

Florida’s courts are clear that mere proximity to the alleged tools is insufficient to establish guilt of the crime. Knowledge that the tools exist in a particular location cannot support a conviction without additional evidence being offered to show the defendant’s culpability in the alleged use or intended unlawful use of the tools. Brown v. State, 428 So. 2d 250 (Fla. 1983)

Another defense (especially effective in constructive possession cases) is a lack of knowledge of the tools themselves. If the alleged burglary tools were hidden in a shared vehicle, bag, or other item that recently was or could have been used by another, the defendant can argue they were unaware that the tools were in their possession – which would bar a conviction.

An additional defense is a lack of connection between an intended burglary or trespass and the tools themselves. Even if the defendant did intend to commit a burglary or trespass, the State must prove that the specific tools they recovered were intended to be used as part of that burglary or trespass. If this connection cannot be shown, a conviction cannot be supported. Fortson v. State, 179 So.3d 414 (Fla. 1st DCA 2015) 

Yet another defense to a charge of possession of burglary tools is abandonment of criminal intent. If the defendant had what could be considered “burglary tools” in their possession and thought about committing a burglary or trespass with them – but changed their mind – this is not a crime. 

For Fla. Stat. Section 810.06 to have been violated, the defendant must have been found in possession of the alleged tools and either used or actively intended to use them to commit a burglary or trespass. If they intended to do so a few months ago and never went through with it, the continued possession of the “tools” (which may be common household items) is not a crime. Thomas v. State, 531 So. 2d 708 (Fla. 1988)

In some cases, defending against a possession of burglary tools charge requires motions to suppress evidence obtained due to improper police procedures or violations of a suspect’s constitutional rights.

This may include:

• • Unlawful search and seizure: If law enforcement violates someone’s Fourth Amendment rights by searching an area or seizing evidence without the necessary legal permissions, the recovered evidence may be ruled “fruit of the poisonous tree” subject to suppression. Wong Sun v. United States, 371 U.S. 471 (1963)
• Miranda violations: If law enforcement officers fail to read a suspect their Miranda rights, do so after already initiating interrogation, or use trickery or coercion to obtain a Miranda waiver, statements made by a suspect during that interrogation are inadmissible in court. Miranda v. Arizona, 384 U.S. 436 (1966)

A final defense to possession of burglary tools is entrapment. There are two types of entrapment defenses, either of which may be used depending on the facts of a case:

• Objective entrapment: Law enforcement conduct that is so egregious, it violates the due process rights of the defendant and contaminates the legal proceedings against them. Dippolito v. State, 275 So.3d 653 (Fla 4th DCA 2019). 
• Subjective entrapment (Fla. Stat. Section 777.201): The defense must first prove by a preponderance of the evidence that the State induced the defendant to commit the offense. If inducement is established, the State must prove beyond a reasonable doubt that the defendant was predisposed to act criminally. Munoz v. State, 629 So. 2d 90 (Fla. 1993). If the State cannot do so, the charge fails on entrapment grounds.

In addition to the many legally valid defenses to possession of burglary tools, there are others that do not provide a legally valid defense to the charge (“non-defenses”) in Florida.

These include:

• “The tools are commonly owned”: Courts have been consistent that if it is proven beyond a reasonable doubt that the tool was used/intended to be used in a burglary or trespass, even a common tool (screwdrivers, etc.) can trigger a charge
• “There was no burglary or trespass”: The charge does not require the completion of a burglary or trespass – it only requires the possession of the tools with the criminal intent to use them in the crime(s)
• “The tools weren’t uniquely designed for burglary”: The law covers any tool, machine or implement – not just those commonly associated with burglary
• “I didn’t have the tools for that long”: Even short time of possession can violate the law if all other elements are satisfied

In sum, possession of burglary tools (Fla. Stat. Section 810.06) is a very serious felony offense. A third-degree felony, it is punishable by up to 5 years in prison, 5 years of probation and a $5,000 fine.

However, many defenses exist to a possession of burglary tools charge. These include lack of intent to use the tools in a burglary or trespass, lack of knowledge of the tools, entrapment, innocent use, lack of connection between the tools and the alleged intended burglary or trespass, abandonment, and more. 

If someone is arrested and formally charged in Florida in a case involving alleged burglary or possession of burglary tools, it is critical to find experienced and trusted legal representation as soon as possible. This decision could make the difference in whether or not someone faces a lengthy prison term and hefty fines.

Criminal Defense Attorney in Tallahassee, FL

Don Pumphrey, Jr. is a Former Prosecutor, Former State Police Officer, Lifetime Member of the Florida Association of Criminal Defense Lawyers; for over 25 years as a private defense attorney who is Trusted, Experienced, Aggressive in Criminal Defense as a Trial Attorney, Criminal Lawyer, Criminal Defense Lawyer for the accused in Florida State Courts located in Tallahassee, Florida but handling cases throughout the State of Florida.

Don Pumphrey, Jr. and the Tallahassee criminal defense lawyers at Pumphrey Law have decades of experience fighting drug charges on behalf of clients and winning. Call Pumphrey Law now at (850) 681-7777 to learn more about what we can do for you. Our lawyers will be happy to provide you with a free consultation.

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