dissenting:
The majority concludes that the affidavit upon which the search of Robert Hakel’s residence was based was sufficient to establish probable cause to believe that records of Hakel’s drug transactions were located at his residence. It therefore reverses the judgment of the court of appeals and remands the case with directions to reinstate the judgment of conviction entered against Hakel by the trial court. Maj. op. at 1229-30. However, while the information in the affidavit may have established probable cause to believe that the records existed, that information contained nothing to establish, beyond the level of mere suspicion, that the records were to be found at Hakel’s residence. Therefore, I agree with the court of appeals’ conclusion that the affidavit supporting the search warrant for Hakel’s residence failed to show the existence of probable cause. People v. Hakel, No. 90CA1966, slip op. at 3 (Colo.App. Nov. 17, 1992) (not selected for publication). Accordingly, I would affirm the judgment of the court of appeals.
• The majority adequately presents the facts of the case. Both the United States Constitution and the Colorado Constitution guarantee the right of the people to be secure in their persons against unreasonable searches and seizures by the government. U.S. Const, amends. IV, XIV; Colo. Const, art. II, sec. 7- This right is safeguarded by the probable cause standard which is designed to protect citizens from “rash and unreasonable interferences with privacy” yet give “fair leeway for enforcing the law in the community’s protection.” Brinegar v. United States, 338 U.S. 160, 176, 69 S.Ct. 1302, 1311, 93 L.Ed. 1879 (1949). In determining whether an affidavit for a search warrant establishes probable cause, a magistrate must apply a totality-of-the-circumstances analysis. Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983); People v. Pannebaker, 714 P.2d 904, 907 (Colo.1986) (adopting the totality-of-the-circumstances test of Gates for the purpose of Article II, Section 7, of the Colorado Constitution). The magistrate must determine whether “there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Gates, 462 U.S. at 238, 103 S.Ct. at 2332. A reviewing court must inquire whether the magistrate had a “ ‘substantial basis for ... concluding]’ that probable cause existed.” Id. (quoting Jones v. United States, 362 U.S. 257, 271, 80 S.Ct. 725, 736, 4 L.Ed.2d 697 (1960)). “ ‘In the case of a search, probable cause means reasonable grounds to believe that [the item sought] is located in the area to be searched.’ ” People v. Higbee, 802 P.2d 1085, 1089 (1990) (quoting People v. Melgosa, 753 P.2d 221, 225 (Colo.1988)); see also Zurcher v. Stanford Daily, 436 U.S. 547, 556, 98 S.Ct. 1970, 1976-77, 56 L.Ed.2d 525 (1978) (“The critical element in a reasonable search is ... that there is reasonable cause to believe that the specific “things” to be searched for and seized are located on the property to which entry is sought.”).
In the present case, the affidavit at issue, dated October 12, 1989, incorporated a previous affidavit and provided the following information: Hakel was convicted in 1985 of possession of cocaine and possession of cocaine with intent to distribute; individuals trafficking and distributing controlled substances habitually keep records of their cocaine transactions; in 1984, Hakel kept records of his transactions in cocaine; in 1984, Hakel used a “safe house” to store his cocaine; earlier on October 12, 1989, a warrant had been executed for a search of a motel room used by Hakel; in that search, cocaine was discovered but no records were found.
As a result of this information, the police believed that records of Hakel’s drug transactions were located somewhere. Nevertheless, even if that belief rose to the level of *1231probable cause, the belief that the records were located at Hakel’s residence did not rise above the level of mere suspicion. See People v. Hart, 718 P.2d 538, 540 (Colo.1986) (noting that a prime motivation for adoption of the Fourth Amendment was hostility to seizures based on mere suspicion). Nothing in the affidavit established that Hakel previously kept records of his drug transactions at his residence.1 The affidavit merely stated that in 1984, Hakel “kept records of his transactions in cocaine.” The totality of the facts asserted in the affidavit did not imply that the records were more likely to be found at Hakel’s residence than at any other location to which Hakel had access. Therefore, no reasonable grounds existed to believe that the records were located at any particular location and the affidavit thus did not establish probable cause to search Hakel’s residence.
Because I agree with the court of appeals’ conclusion that the search of Hakel’s residence was not supported by probable cause, I would affirm both the court’s reversal of the trial court’s judgment of conviction and its remand for retrial with instructions that evidence discovered as a result of that search be suppressed. Hakel, slip op. at 3, 5-6. Accordingly, I respectfully dissent.
ERICKSON and SCOTT, JJ., join in this dissent.
. The majority finds similarities in the affidavit between Hakel's movements in 1984 and in the present case. Maj. op. at 1228-29. However, the only similarity between these movements is that in 1984, Hakel went to the safe house prior to making drug sales and in the present case, Hakel visited the motel room before making a drug sale. Referring to the 1984 investigation, the affidavit stated that "on almost every occasion that [investigators] followed Hakel when he was doing a drug sale ... he went to the safe house prior to making his contact to retrieve the cocaine.” The affidavit did not mention Hakel's residence in connection with the 1984 investigation. The mere fact that in the present case Hakel left from and returned to his residence before and after visiting the motel and making the sale did not create probable cause to believe that records would be found at his residence.