Commonwealth v. Dylen J. Tavares.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

24-P-1124

COMMONWEALTH

vs.

DYLEN J. TAVARES.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

A District Court jury found the defendant guilty of

carrying a firearm without a license and possession of

ammunition without a firearm identification card. On appeal,

the defendant argues that a judge (motion judge) erred by

denying his motion to suppress evidence discovered in a shoulder

bag the defendant was wearing during a patfrisk, after police

stopped a vehicle in which he was a passenger. The defendant

also asserts that a different judge (trial judge) erred by

denying his motion for attorney-led voir dire of prospective

jurors and his counsel's request to pose follow-up questions to

a particular juror before she was seated. We affirm.
Discussion. 1. Motion to suppress. The defendant argues

that police lacked sufficient justification to pat frisk him and

open his shoulder bag. He contends that the motion judge's

decision was based on clearly erroneous factual findings

relative to the events following the motor vehicle stop.1 We

disagree.

"In reviewing a ruling on a motion to suppress evidence, we

accept the judge's subsidiary findings of fact absent clear

error" (citation omitted). Commonwealth v. Daveiga, 489 Mass.

342, 346 (2022). "A judge's finding is clearly erroneous only

where there is no evidence to support it or where the reviewing

court is left with the definite and firm conviction that a

mistake has been committed" (citation omitted). Commonwealth v.

Guardado, 491 Mass. 666, 676 (2023). "We review independently

the application of constitutional principles to the facts found"

(citation omitted). Daveiga, supra.

The motion judge heard testimony from two police witnesses

and viewed video footage (video) from the dashboard camera of a

responding officer's police cruiser. We summarize the facts as

found by the motion judge, supplemented with "evidence from the

record that is uncontroverted and undisputed and where the judge

1 The defendant does not contest the motor vehicle stop or
exit order.

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explicitly or implicitly credited the witness's testimony"

(citation omitted). Commonwealth v. Garner, 490 Mass. 90, 94

(2022).

On November 22, 2021, a Fairhaven resident contacted

police, identified herself, and reported that a person in a

vehicle parked in the driveway next door was brandishing a

firearm. Officer Christopher Bettencourt arrived at the

resident's home within five minutes and the resident provided

him a description of the vehicle, which was no longer there, and

its driver. While searching the area for the vehicle, Officer

Bettencourt spoke with Fairhaven Detective Mark Darmofal.

Detective Darmofal was familiar with the vehicle and knew its

driver, Tyler Alexander, from previous police encounters.

Detective Darmofal also knew that Alexander did not have a

license to carry firearms.

A short time after speaking with Detective Darmofal,

Officer Bettencourt saw the vehicle and stopped it. Several

other police officers arrived almost immediately, including

Detective Darmofal. Alexander was driving the vehicle, and the

defendant was in the front passenger seat with a pouch-style bag

on his lap. The bag had a single shoulder strap, which was

draped across the defendant's shoulder and chest. Officer

Bettencourt approached the passenger's side of the vehicle,

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ordering the defendant to "place his hands on the dashboard in

front of him." The defendant appeared nervous. Instead of

putting his hands on the dashboard, the defendant pushed the bag

across his lap toward the center console. He also "called out

to Alexander to lock the doors and don't let [the police] in."

Detective Darmofal approached the driver's side, removed

Alexander, spoke to him briefly, pat frisked him, found nothing,

and placed him in a nearby police cruiser without incident.

Meanwhile, Officer Bettencourt ordered the defendant out of the

vehicle. When the defendant did not comply, the officer opened

the door, unclipped the defendant's seatbelt, and removed him.

The defendant then struggled with Officer Bettencourt, turning

toward the vehicle to "shield" the bag from the officer and

refusing to put his hands on the roof of the vehicle.

Another officer assisted Officer Bettencourt to "subdue"

and handcuff the defendant. Officer Bettencourt then pat

frisked the defendant and the exterior of the bag, which was

still hanging over the defendant's shoulder. Officer

Bettencourt immediately felt what he recognized as a firearm in

the bag. The bag was opened, and police discovered a loaded

firearm inside.2

2 Although the judge found Officer Bettencourt opened the
bag, according to the testimony, Officer Bettencourt removed the
bag from the defendant but another officer opened it.

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a. The motion judge's factual findings. The defendant

argues that the video demonstrated that four "critical" factual

findings made by the judge were clearly erroneous: (1) the

defendant told Alexander to roll up the windows and lock the

doors; (2) the defendant refused to put his hands on the

dashboard; (3) the defendant attempted to conceal the bag

containing the firearm; and (4) the defendant physically

struggled with officers when he exited the vehicle. See

Commonwealth v. Karen K., 491 Mass. 165, 169 (2023) ("A finding

is clearly erroneous when there is no evidence to support it, or

when, although there is evidence to support it, the reviewing

court on the entire evidence is left with the definite and firm

conviction that a mistake has been committed" [quotation and

citation omitted]). It is evident from our viewing of the video

that the police cruiser from which it was recorded was parked

some distance away from the driver's side of Alexander's

vehicle. See Commonwealth v. Tremblay, 480 Mass. 645, 654-655

(2018) (appellate court may review documentary evidence

independently). Although it is true that the defendant cannot

be heard on the video telling Alexander to roll up the windows

and lock the doors, the sound on the video was muffled at times

and the video makes clear that other spoken words were not

audible. Also, officers were shouting commands from outside the

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car at the same time the defendant was speaking to Alexander

while they were still inside the car. The video does not offer

a clear view of the defendant while he was inside the vehicle

and, to the extent it shows him, light reflecting off the

windshield obscures the defendant's body and hands. In

addition, the camera angle does not permit a clear view of the

defendant's body as he was removed from the passenger side of

the car, and the defendant's shoulder bag is not visible in the

video at all prior to its removal.

In contrast, the police witnesses were within inches of the

defendant and Alexander, and thus in a position to see and hear

things that the video could not capture. The motion judge was

entitled to credit the testimony of the witnesses, see Garner,

490 Mass. at 94, which supported each of the judge's findings.

Because each of the motion judge's "critical" factual findings

was supported by witness testimony, and not refuted by the

video, we conclude that they were not clearly erroneous.

b. The patfrisk. To justify a patfrisk, "police must have

a reasonable suspicion, based on specific articulable facts,

that the suspect is armed and dangerous." Commonwealth v.

Torres-Pagan, 484 Mass. 34, 38-39 (2020). "We examine the facts

not in isolation, but as they reasonably and objectively

appeared in the context of the ongoing encounter." Commonwealth

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v. Rosado, 84 Mass. App. Ct. 208, 212 (2013). Our inquiry into

a suspect's dangerousness is fact-specific, and we consider the

totality of the circumstances. See Commonwealth v. Crowder, 495

Mass. 552, 566 (2025).

Here, police had reliable information that Alexander

possessed a firearm in the vehicle without a firearm license.

However, a patfrisk of Alexander and brief scan inside the

vehicle did not reveal the firearm. At the same time, the

defendant's behavior -- telling Alexander not to lower the

windows and to lock the door and moving his bag away from the

officers in an apparent effort to conceal it -- provided

reasonable suspicion that he possessed the firearm (i.e., that

he was "armed"). Reasonable suspicion that the defendant was

armed, in combination with his (1) refusal to obey orders to put

his hands on the dashboard, unbuckle his seat belt, and exit the

vehicle; (2) physically struggling with officers as they removed

him; and (3) twisting his body so that the pouch-style bag faced

away from Officer Bettencourt provided reasonable suspicion that

the defendant was "dangerous." See Crowder, 495 Mass. at 565-

569 (following lawful exit order, fact that defendant turned

portion of his body containing jacket pocket away from officer

and pressed that pocket against his body was relevant to

determination that he was sufficiently dangerous to justify

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patfrisk). See also Commonwealth v. Sweeting-Bailey, 488 Mass.

741, 747-748 (2021) (passenger's erratic movements outside car

to distract police from interior of car relevant to

dangerousness inquiry). We thus discern no error in the motion

judge's conclusion that the patfrisk of the defendant and the

bag he was wearing was justified.

We are not persuaded by the defendant's contention that,

even if the patfrisk was justified, there was no justification

to open the shoulder bag. Under the circumstances, once Officer

Bettencourt felt what he recognized to be a firearm, police were

authorized to seize and secure it. See Commonwealth v. Wilson,

441 Mass. 390, 397 (2004) ("plain feel" doctrine authorizes

seizure when contraband nature of item is immediately apparent).

2. Jury selection. The defendant argues that the trial

judge committed prejudicial errors by denying the defendant's

motions for attorney-led voir dire and refusing follow-up

questions of a juror. We disagree.

a. Attorney-led voir dire. Under District Court Standing

Order 1-18 (2018) (standing order), a trial judge "shall allow"

attorney-led voir dire, if it is properly requested in advance.

A violation of this standing order is error. See Commonwealth

v. Leonard, 103 Mass. App. Ct. 635, 637 (2023). However, the

standing order is an internal mechanism for the court to empanel

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a fair and impartial jury, and not a constitutional imperative,

thus this error only warrants relief if it prejudiced the

defendant's case. Id. at 638.

Here, the defendant filed a motion for attorney-led voir

dire over a month before trial. When the trial was rescheduled,

the defendant renewed his motion, this time adding questions he

would like the judge to ask. Because both motions complied with

the requirements of the standing order, the trial judge should

have allowed them. Nevertheless, the trial judge did ask the

entire venire the three questions requested by the defendant,

which related to jurors' potential biases regarding firearms

offenses, along with standard questions about juror bias. No

juror gave an affirmative response to any of the defendant's

proposed questions. On this record, we conclude that the voir

dire procedure was sufficient to accomplish the objective of the

standing order to empanel a fair and impartial jury. We thus

discern no prejudice from the trial judge's denial of the

defendant's request for attorney-led voir dire. Leonard, 103

Mass. App. Ct. at 639 (no prejudice where judge covered all

topics defendant wanted to explore).

b. Juror twenty-two. During jury selection, the trial

judge questioned juror number twenty-two individually about a

statement on her questionnaire that she had no tolerance for

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"child molesters, drunk drivers or drug dealers." Juror twenty-

two had already stated that she was aware of nothing that would

prevent her from being a fair and impartial juror. The

defendant requested that the juror be asked if she associated

firearms with drug dealers. The trial judge declined to ask

this specific question; however, he had earlier asked whether

"anything about [her] thoughts and beliefs about those type of

cases that would spill into this case or make it difficult for

[her] to be fair and impartial as a juror in this case?" The

juror responded, "No." This question adequately explored the

defendant's concern regarding juror twenty-two's potential bias

in firearms cases and the connection between drugs and firearms.

See Leonard, 103 Mass. App. Ct. at 639. Moreover, the defendant

did not challenge juror twenty-two for cause and stated he was

content with the jury after the last juror was seated. Compare,

e.g., Commonwealth v. McCoy, 456 Mass. 838, 842 (2010) ("Where

a defendant fails to challenge a juror for cause, the questions

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of the impartiality of that juror and the adequacy of voir dire

are waived").

Judgments affirmed.

By the Court (Rubin,
Brennan & Wood, JJ.3),

Clerk

Entered: February 6, 2026.

3 The panelists are listed in order of seniority.

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