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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 12-FS-1771

IN RE J.W., APPELLANT.

Appeal from the Superior Court

of the District of Columbia

(DEL-1326-12)

(Hon. Robert R. Rigsby, Trial Judge)

(Submitted September 29, 2014 Decided October 9, 2014)

James E. Drew was on the brief for appellant.

Irvin B. Nathan, Attorney General for the District of Columbia, Todd S. Kim, 

Solicitor General, Rosalyn Calbert Groce, Deputy Solicitor General, and Janice Y. 

Sheppard, Assistant Attorney General, were on the brief for appellee District of 

Columbia.

Before FISHER and BECKWITH, Associate Judges, and FARRELL, Senior 

Judge.

FISHER, Associate Judge: Following a bench trial, appellant J.W. was found 

“involved” in possessing the implements of crime. D.C. Code § 22-2501 (2012 

Repl.). On appeal, he contends that this statute does not apply to the bolt cutters he 

possessed and, therefore, the government failed to prove the offense charged. We 

agree.
2

I. Factual and Statutory Background

At approximately 3:45 a.m. on July 1, 2012, Metropolitan Police 

Department Officer Perry Morgan saw J.W. and another youth examining a Vespa 

scooter that was chained to a fence. Despite the hot weather, J.W. was dressed in 

black ski pants and had a black ski mask perched on top of his head. He was also 

carrying two-foot-long bolt cutters with yellow handles. When the two young men 

noticed the officer, they climbed on a bicycle and rode towards him. After 

stopping them, Officer Morgan asked J.W., who was sixteen years old at the time, 

what he was doing with the bolt cutters. J.W. replied, “[W]hat, I can‟t have 

these[?] . . . . [A]n officer said that it was okay for [me] to have these,” and then 

dropped them to the ground. J.W. was arrested and, after a bench trial, was found 

“involved” in possessing the implements of crime. 

J.W. was charged with violating a statute that prohibits the possession of 

“any instrument, tool, or implement for picking locks or pockets, with the intent to 

use such instrument, tool, or implement to commit a crime.” D.C. Code § 22-2501 

(2012 Repl.). The predecessor statute, part of the vagrancy laws, “was clearly

intended as a „burglar tool‟ statute, the wording of which was typical of similar 
3

misdemeanor enactments in many states.”

1

 Rosenberg v. United States, 297 A.2d 

763, 765 (D.C. 1972). In 1941 Congress broadened the scope of the vagrancy 

statute by deleting language pertaining to “burglary” and “against property.” 

Pub. L. No. 77-352, 55 Stat. 808 (1941) (codified as D.C. Code § 22-3302). After 

the amendment, the statute covered the implements of “any crime,” but it

continued to be applied primarily to the possession of burglary tools. See, e.g.,

Patten v. United States, 248 A.2d 182, 183 (D.C. 1968) (“a paper bag containing 

several tools commonly used for burglary”). The expansive language of the 1941 

statute survived in subsequent enactments, 2and the statute was increasingly

applied “to narcotics paraphernalia, explosive mechanisms and other devices[.]” 

Rosenberg, 297 A.2d at 765.

 

1

 This statute labeled as “vagrants,” those “[p]ersons upon whom shall be 

found any instrument, tool or other implement used for the commission of 

burglary, or the commission of any other crime against property, or for picking 

locks or pockets who shall fail to give a good account of the possession of the 

same[.]” Pub. L. No. 60-303, 35 Stat. 711 (1909).

2

 See Pub. L. No. 83-85, 67 Stat. 97 (1953) (codified as D.C. Code 

§ 22-3601) (repealed) (“No person shall have in his possession in the District any 

instrument, tool, or other implement for picking locks or pockets, or that is usually 

employed or reasonably may be employed in the commission of any crime, if he is 

unable satisfactorily to account for the possession of the implement.”).
4

In 1981, the Council of the District of Columbia created a new offense, 

possession of drug paraphernalia,

3

and repealed the statute which prohibited

possession of implements of crime. See § 410 and § 604 (a)(2) of the District of 

Columbia Uniform Controlled Substances Act of 1981, D.C. Law 4-29, 28 D.C. 

Reg. 3108 (1981). Three months later, the Council enacted a new statute that 

substantially narrowed the categories of instruments, tools, and implements to 

which it applied.4See D.C. Law 4-52, § 3 (g), 28 D.C. Reg. 4348 (1981). Thus, 

the current “statute applies only to the possession of [an] „instrument, tool or 

implement for picking locks or pockets,‟ unlike the former provision, which 

reached beyond those instruments to include other implements which are „usually 

employed, or reasonably may be employed in the commission of any crime.‟” 

 

3

 This statute generally prohibits the possession of “a hypodermic needle, 

hypodermic syringe, or other instrument that has on or in it any quantity (including 

a trace) of a controlled substance with intent to use it for administration of a 

controlled substance by subcutaneous injection in a human being[.]” D.C. Law 4-

29, § 410, 28 D.C. Reg. 3108 (1981) (codified originally as D.C. Code § 33-550 

(1981) and currently as D.C. Code § 48-904.10 (2012 Repl. & 2014 Supp.)). The 

next year, the Drug Paraphernalia Act of 1982 created an additional, more 

generalized, offense of possession of drug paraphernalia. See D.C. Law 4-149, § 4, 

29 D.C. Reg. 3369 (1982) (codified originally as D.C. Code § 33-603 and currently 

as D.C. Code § 48-1103 (a) (2014 Supp.)).

4

 The new statute also removed language about the defendant satisfactorily 

accounting for his possession of the implement, eliminating concerns that the 

previous statute had unconstitutionally shifted the burden of proof to the defendant. 

D.C. Law 4-52, § 3 (g), 28 D.C. Reg. 4348 (1981); see Benton v. United States, 

232 F.2d 341, 345 (D.C. Cir. 1956).
5

Criminal Jury Instructions for the District of Columbia, No. 5.403 cmt. (5th ed. 

rev. 2013).

II. Construing the Statute

When construing a statute, our purpose “is to ascertain and give effect to the 

intent of the legislative body that drafted the language.” Tenley & Cleveland Park 

Emergency Comm. v. District of Columbia Bd. of Zoning Adjustment, 550 A.2d 

331, 334 n.10 (D.C. 1988). But “[t]he primary and general rule of statutory 

construction is that the intent of the lawmaker is to be found in the language that he 

[or she] has used.” Peoples Drug Stores v. District of Columbia, 470 A.2d 751, 

753 (D.C. 1983) (en banc) (internal quotation marks and citation omitted). Thus,

our primary focus is on the plain language of the statute, and this is perforce true 

where, as here, there is no legislative history explaining the Council‟s intent in 

narrowing the scope of the statute.

5

Furthermore, “in examining the statutory

 

5

 In a footnote to an opinion issued shortly after the new implements of 

crime statute was enacted, this court concluded “that the Council intended . . . to 

repeal [the possession of implements of crime statute] solely as it applied to 

narcotics paraphernalia; and to substitute therefor . . . a specific narcotics 

paraphernalia possession provision.” United States v. Covington, 459 A.2d 1067, 

1068 n.1 (D.C. 1983). Although the Council may not have intended to repeal the 

previous statute in its entirety, it did not restore the original expansive language 

when it enacted a new statute to replace the old one. It appears that this process of 

(continued...)
6

language, it is axiomatic that „[t]he words of the statute should be construed 

according to their ordinary sense and with the meaning commonly attributed to 

them.‟” Id. (quoting Davis v. United States, 397 A.2d 951, 956 (D.C. 1979)).

The first element of the crime requires the possession of “any instrument, 

tool, or implement for picking locks or pockets[.]” D.C. Code § 22-2501 (2012 

Repl.). Here, of course, we are concerned with the picking of locks, not the 

picking of pockets. It seems more likely that appellant would have used the boltcutters to sever the chain which secured the scooter rather than to break the lock. 

But even if the lock was his target, “picking a lock” is generally understood to 

require skill rather than brute force, as confirmed by the following definitions of 

“pick”: Webster’s Third New International Dictionary 1709 (2002) (“to turn (a 

lock) with a wire or a pointed tool instead of the key esp. with intent to steal”); 

Dictionary.com, http://dictionary.reference.com/browse/pick (last visited Sept. 15, 

 

(...continued)

repeal and partial reenactment has left a statutory gap. Cf., e.g., Del. Code Ann. 

tit. 11, § 828 (West 2014) (prohibiting possession of burglar‟s tools or instruments 

facilitating theft); N.Y. Penal Law § 140.35 (McKinney 2014) (prohibiting 

possession of burglar‟s tools and instruments “adapted, designed or commonly 

used for committing or facilitating . . . offenses involving larceny by a physical 

taking”); Va. Code Ann. § 18.2-94 (West 2014) (prohibiting possession of tools or 

implements “with intent to commit burglary, robbery or larceny”).
7

2014) (“to open (a lock) with a device other than the key, as a sharp instrument or 

wire, especially for the purpose of burglary”). 

The government proffers an expansive definition of lock-picking that

includes any manner of “open[ing] a lock with an instrument other than the proper 

key.” Oxford Dictionaries, 

http://www.oxforddictionaries.com/definition/english/pick-a-lock (last visited 

Sept. 16, 2014). See also American Heritage Dictionary 1368 (3d ed. 1992) (“To 

open (a lock) without the use of a key.”). But a penal statute must “define the 

criminal offense with sufficient definiteness that ordinary people can understand 

what conduct is prohibited[,]” Kolender v. Lawson, 461 U.S. 352, 357 (1983), and 

we doubt that an ordinary citizen would anticipate that the term “picking locks” 

encompasses every conceivable method of opening (including breaking or 

destroying) a lock without the key. We therefore conclude that, in this context, the 

term “picking a lock” means “the opening of the lock without the use of the 

original or duplicate keys and without damage to the lock.” See Segal Lock &

Hardware Co. v. Fed. Trade Comm’n, 143 F.2d 935, 937 (2d Cir. 1944) (citation 

omitted). 
8

III. Applying the Statute

We agree that bolt cutters may be used to commit a crime and that there was 

abundant evidence that appellant carried them for that purpose. Thus, a cursory 

comparison of these facts to the title of the statute – “possession of implements of 

crime” – might lead to the conclusion that appellant is guilty of the crime charged. 

However, “[t]he significance of the title of the statute should not be exaggerated.” 

Mitchell v. United States, 64 A.3d 154, 156 (D.C. 2013). “[H]eadings and titles are 

not meant to take the place of the detailed provisions of the text.” Bhd. of R.R. 

Trainmen v. Balt. & Ohio R.R. Co., 331 U.S. 519, 528 (1947). We therefore focus 

our analysis on the text of the statute, which limits its reach to tools and 

implements “for picking locks or pockets.” Because bolt cutters are not “lockpicking tools” within the definition we have adopted, there was insufficient 

evidence to sustain J.W.‟s adjudication. We therefore vacate the adjudication for 

possessing implements of crime.

 It is so ordered.