concurring in part, dissenting in part.
I concur with the majority’s resolution of the search and seizure issues raised in this appeal and therefore join in part A of the decision. Because I conclude that the trial judge did not abuse his discretion in precluding defense witnesses and documentary evidence, I dissent from the holding and discussion set forth in part B.
The failure of the defense ever to have disclosed, prior to defendant’s opening statement, that a defense that the real wrongdoer was Ed Kenefick would be employed and that certain witnesses and documents would be offered in support of such defense, was a blatant violation of Rule 15 which, the trial court reasonably found, prejudiced the state. The only “excuse” offered for this obvious concealment12 was that the defendant was living in New York and did not assist with the preparation of the defense. Neither defendant’s declination to assist in the preparation of his defense nor defense counsel’s doubts as to the viability of the undisclosed defense justify a blatant and prejudicial violation of the rules compelling timely disclosure.
The majority concludes that evidence preclusion cannot be upheld here because the trial court did not find defense counsel to have acted in bad faith. I am aware of no case law that requires such a finding. Indeed, our supreme court has upheld the preclusion of defense evidence based simply on the fact of untimely disclosure, relying on the constitutionality of schemes which require timely disclosure by criminal defendants in State v. Talley, 112 Ariz. 268, 270, 540 P.2d 1249, 1251 (1975), and on the need to apply Rule 15 “with equal force to both the prosecution and the defendant” in State v. Dorow, 116 Ariz. 294, 295, 569 P.2d 236, 237 (1977).
With one exception, the federal courts have not squarely faced the question as to whether the preclusion of untimely disclosed defense evidence can ever be upheld absent a finding of bad faith or willful misconduct. In United States v. Johnson, 970 F.2d 907, 910-11 (D.C.Cir.1992), the appeals court held that bad faith is an “important factor” but not an “absolute condition for exclusion” in determining the sanction for untimely defense disclosure, and went on to uphold evidence preclusion notwithstanding the trial court’s finding that defense counsel had acted in good faith. See United States v. Seeright, 978 F.2d 842, 848 (4th Cir.1992) (upholding preclusion of witnesses not named in disclosure notwithstanding that defense had timely identified defense to be employed and had disclosed that witnesses would be called in support of identified defense). And, while in United States v. Peters, 937 F.2d 1422, 1426 (9th Cir.1991), the court expressed its belief that “the [United States Supreme] Court has upheld the drastic remedy of excluding a witness only in cases involving ‘willful and blatant’ discovery violations,” there was no discovery violation, willful or otherwise, found in Peters.13
Further, whether or not the trial court here believed that the defense acted in bad *178faith,14 we are not bound by his remarks in this regard. The application of the factors that determine the propriety of evidence preclusion for untimely disclosure is a legal matter which we determine de novo. Bowling v. Vose, 3 F.3d 559, 561 n. 4 (1st Cir.1993). In light of the prosecution’s compliance with the discovery rules and the defense’s clear violation of those rules in this case, and the obvious fact that sandbagging provides an unfair advantage to the violator, I would find a willful violation of the rules of reciprocal discovery, and affirm. See United States v. Mason, 902 F.2d 1314, 1315 (8th Cir.1989) (inferring willful violation from fact that defense knew and did not disclose that, as trial proceeded, witnesses were en route to testify)-
I disagree with the notion that the availability of a nominally “less restrictive alternative” such as trial continuance or mistrial somehow alters the outcome of the balancing test dictated by Taylor v. Illinois, 484 U.S. 400, 418, 108 S.Ct. 646, 657-58, 98 L.Ed.2d 798 (1988). In my view, trial continuance or declaration of a mistrial with the jury empaneled and the trial already begun is extremely disruptive to judicial administration and to other societal and judicial values. When there is absolutely no excuse for the conduct which has occasioned the disruption, I cannot conclude that our trial courts must countenance such conduct. Division Two has noted that “heavy court congestion,” which is certainly a fact of life for Arizona trial courts, justifies the rejection of a continuance as a sanction for the failure to make timely disclosure. State v. Scott, 24 Ariz.App. 203, 205, 537 P.2d 40, 42 (1975). And if it was true in this case, as the trial court found and the majority affirms, that defense counsel was dilatory in preparing for trial, postponing trial would have rewarded the defense for its discovery violations by allowing additional time to properly prepare.
To be sure, most lawyers in this state comply at least with the spirit of the rules of disclosure for criminal cases. I fear that the majority here has provided incentives for sandbagging and vitiated the rules requiring reciprocity of disclosure, thus penalizing the conscientious practitioners who follow the rules.
. Defendant had purportedly known Kenefick even before the incidents that led to the charges in this case, and did not come belatedly to learn of Kenefick’s supposed role in those incidents; indeed, trial counsel for the defendant admitted that defendant had, at some point before trial, told him about Kenefick, but that counsel had not timely disclosed the information because he "was uncertain as to whether or not it was susceptible of being established.” The defense simply kept the whole Kenefick scenario to itself until the most advantageous time, after trial had begun.
. In People v. Edwards, 17 Cal.App.4th 1248, 22 Cal.Rptr.2d 3, 12 (1993), an appellate court opined that preclusion "should be reserved” as a sanction for "willful” violations committed "to obtain a tactical advantage.” However, in Edwards, it was unclear whether the discovery violation had afforded any tactical advantage to the defense. Id. Further, a California statute allows evidence preclusion only "as a last resort.” Id. Neither of these circumstances are present in the instant case.
. The trial judge termed defense counsel’s excuses "baloney.”