concurring with the result. I agree that the trial court should have conducted a factual inquiry to determine whether the defendant’s right to a fair trial would likely be prejudiced by publicity generated by the suppression hearing. I do not believe that the burden imposed in the opinion authored by Justice Hill upon a defendant seeking closure of a suppression hearing adequately protects the defendant’s Sixth Amendment interests nor do I believe that it comports with recent decisions of the United States Supreme Court. Under these holdings there is a qualified First Amendment right of public access to attend criminal trials, Globe Newspaper Co. v. Superior Court for Norfolk County, 457 U.S. 596, 603-04 (1982); voir dire proceedings, Press-Enterprise Co. v. Superior Court of California, 464 U.S. 501, 513 (1984) (Press-Enterprise I); and preliminary hearings as conducted in California which the Court concluded were sufficiently like a trial to justify the same result, Press-Enterprise Co. v. Superior Court of California, 478 U.S. 1, 10, 106 S. Ct. 2735, 2741 (1986) (Press-Enterprise II). In addition, a majority of the Justices concluded in Gannett Co. v. DePasquale, 443 U.S. 368, 378 (1979), that this First Amendment right extended to a pretrial suppression hearing even though the case did not expressly reach that question. See Waller v. Georgia, 467 U.S. 39, 45 (1984).
*476After determining that a qualified First Amendment right of access attached to preliminary hearings in California, the United States Supreme Court in Press-Enterprise II held that such “proceedings cannot be closed unless specific, on-the-record findings are made demonstrating that ‘closure is essential to preserve higher values and is narrowly tailored to serve that interest.’ ” 478 U.S. at 13-14, 106 S. Ct. at 2743 (quoting Press-Enterprise I, 464 U.S. at 510). Further, if the interest asserted is the right of a defendant to a fair trial, such a preliminary hearing may only be closed if specific findings are made that there is a “substantial probability” that the defendant’s right to a fair trial will be prejudiced by publicity that closure would prevent, and that reasonable alternatives to closure cannot adequately protect the defendant’s fair trial rights. Id. The Court specifically rejected the California Supreme Court’s interpretation of its access statute which required closure upon finding “a reasonable likelihood of substantial prejudice.” 478 U.S. at 14-15, 106 S. Ct. at 2743-44. It did not, however, overrule its unanimous decision in Waller v. Georgia, 467 U.S. at 48, holding that a party seeking to close a suppression hearing need only advance an overriding interest that is likely to be prejudiced.
I read these decisions to require one seeking closure of a trial, a voir dire proceeding, a preliminary hearing as conducted in California or the equivalent thereof to demonstrate that a substantial probability of prejudice will otherwise occur, but that closure of a suppression hearing requires only a showing that a defendant’s right to a fair trial is likely to be prejudiced.
The Court has recognized that in the context of a trial itself, as opposed to a pretrial proceeding, various alternatives to satisfy the constitutional demands of fairness may be invoked. Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 581 (1980). Publicity generated by pretrial suppression hearings, however, poses special concerns which are less susceptible of protection by alternatives available during an actual trial.
As expressed in Gannett, 443 U.S. at 378-79:
The danger of publicity concerning pretrial suppression hearings is particularly acute, because it may be difficult to measure with any degree of certainty the effects of such publicity on the fairness of the trial. After the commencement of the trial itself, inadmissible prejudicial information *477about a defendant can be kept from a jury by a variety of means. When such information is publicized during a pretrial proceeding, however, it may never be altogether kept from potential jurors. Closure of pretrial proceedings is often one of the most effective methods that a trial judge can employ to attempt to insure that the fairness of a trial will not be jeopardized by the dissemination of such information throughout the community before the trial itself has even begun.
Because of this danger there is ample reason for the imposition of a lesser burden upon a defendant for closure of a suppression hearing.*
In my view, Waller is controlling and a defendant seeking closure of a pretrial suppression hearing is only required to advance an overriding interest that is likely to be prejudiced. 467 U.S. at 48. Inasmuch as this Court is divided on this issue, its resolution must be left to a later case.
With respect to the question of when an affidavit of probable cause becomes a public document, I would be inclined to give greater guidance to the trial courts. The majority holds that an affidavit of probable cause is a public document after review by a court. At this initial stage, however, the defendant may well be without counsel and, in all probability even with counsel, unable to adequately prepare for and present the evidence required for closure under any standard. In my opinion the trial court should, in fulfillment of its constitutional duty to minimize the effects of prejudicial pretrial publicity, make a preliminary determination sua sponte as to whether the contents of the affidavit could reasonably impair the defendant’s Sixth Amendment rights if made public. If it concludes there is a reasonable likelihood of *478prejudice, the affidavit should be sealed for a sufficient period of time to permit the defendant to move to have some or all of it remain sealed.
If the defendant so moves, the court would hold an evidentiary hearing to determine whether the contents of the affidavit should remain sealed. The State, defendant and public must be given sufficient time to fully and adequately prepare and present their respective positions.
A defendant seeking to have an affidavit remain under seal must demonstrate that the right to a fair trial is likely to be jeopardized by disclosure of the contents of the affidavit. Those opposing the sealing would then have the burden of showing that alternative procedures are available that would eliminate the claimed dangers. Gannett v. DePasquale, 443 U.S. at 401 (Powell, J., concurring). Finally, I believe that the defendant should be required to demonstrate that the sealing would probably be effective in protecting against the perceived danger. United States v. Chagra, 701 F.2d 354, 365 (5th Cir. 1983). The burden of proof on each issue should be by a preponderance of the evidence. The trial court must then make specific findings in support of its decision, and its order must be narrowly drawn to preserve the interest being protected.
To order closure or the sealing of documents, the trial court should be convinced that such action is necessary to vindicate the defendant’s interests, and that no alternatives will suffice. It must employ the least-restrictive means necessary to adequately protect the defendant’s interest, and limit as much as possible the intrusion into the First Amendment value. In essence, the remedy should be tailored to the potential for prejudice initially demonstrated. Preventing damage to the defendant’s Sixth Amendment interest should be the focal point, rather than seeking assurance that the damage can be minimized after it has occurred, since it is difficult to measure the damage caused by pretrial publicity. The trial judge must provide factual support for each of his findings in the hearing’s different phases, which can also be temporarily sealed if necessary. Such findings will allow for appropriate appellate review. Justice Peck joins in this opinion.
As an example, public knowledge of a confession later determined to be inadmissible in a prosecution receiving statewide publicity could so influence public opinion that it might be impossible to impanel an impartial jury. While former Chief Justice Burger suggests in Press-Enterprise II, 478 U.S. at 15, 106 S. Ct. at 2744, that voir dire can identify those jurors whose prior knowledge of the case would disable them from rendering an impartial verdict, he was earlier highly critical of extensive and lengthy voir dire conducted for that very purpose. Press-Enterprise I, 464 U.S. at 510. It is highly questionable whether one’s fair trial rights are adequately protected by a jury comprised of persons who have not read or heard about a criminal matter which has become a media event.