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Law School Case Brief

State v. Warner - 298 Or. 640, 696 P.2d 1052 (1985)


Burglary in a building other than a dwelling is second degree burglary, classified as a Class C felony. Or. Rev. Stat. § 164.215. The maximum period of incarceration is five years. Or. Rev. Stat. § 161.605(3). The crime is elevated to burglary in the first degree if a defendant, in effecting entry or while in a building or in immediate flight therefrom, is armed with a burglar's tool as defined in Or. Rev. Stat. § 164.235. First degree burglary is a Class A felony, carrying a maximum sentence of 20 years.


 Defendant broke into a locked barn by prying a hasp and padlock from the barn door with a Northwest Natural Gas Company signpost. The signpost was a seven and one-half foot long steel I-beam with a yellow warning sign to mark underground cable still attached at the top. Defendant was convicted of burglary in the first degree, the conviction of which the Court of Appeals affirmed. Defendant sought further review from the Supreme Court of Oregon.


Was a metal signpost, which defendant used as a tool for forcible entry into a locked barn, a “burglar’s tool” that elevated the burglary to a felony?




The Supreme Court of Oregon reversed defendant's conviction for first degree burglary. The court noted that a "burglar's tool" was defined in Or. Rev. Stat. § 164.235 as, inter alia, an article "adapted, designed, or commonly used" for committing a forcible entry. It was not contended that the signpost was designed for committing a forcible entry. Further, there was no testimony that signposts themselves were commonly used for such entries. Moreover, despite the prosecution's claim that the signpost was adapted for use as a pry bar, neither the signpost's actual use nor its capability to be used in a proscribed manner was relevant to the determination of whether the signpost was "adapted." In order to be an adapted burglar's tool, defendant must have actually modified the signpost in some way to serve his unlawful endeavor. Thus, because the signpost was not adapted, defendant was did not possess a "burglar's tool" and was improperly convicted of first degree burglary.

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