                                                                       F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                        OCT 24 2001
                                  TENTH CIRCUIT
                                                                   PATRICK FISHER
                                                                             Clerk

 ROLAND RUDD,

          Plaintiff-Appellant,
 v.

 BILL GRAVES, Governor of the State
                                                       No. 01-3264
 of Kansas; WILLIAM P. MAHONEY,
                                               (D.C. No. 01-CV-3067-GTV)
 Police Officer, Wichita Police
                                                         (D. Kan.)
 Department; DONNA JEAN
 BUCKMAN, Police Officer, Wichita
 Police Department; and BOB
 KNIGHT, Mayor, Wichita, Kansas,

          Defendants-Appellees.


                             ORDER AND JUDGMENT *


Before EBEL, KELLY, and LUCERO, Circuit Judges.




      *
        After examining appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R.
34.1(G). The case is therefore ordered submitted without oral argument. This
Order and Judgment is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be
cited under the terms and conditions of 10th Cir. R. 36.3.
      On January 12, 2000, a Kansas jury found Mr. Ronald Rudd, the plaintiff-

appellant, guilty of rape. Mr. Rudd is currently serving a prison sentence in

Kansas for that crime.

      On March 20, 2001, Mr. Rudd filed a suit pursuant to 42 U.S.C. § 1983 in

the United States District Court for the District of Kansas asserting that Wichita

police officers arrested him in violation of his rights under the Fourth and

Fourteenth Amendments. (Doc. 3.) Specifically, Mr. Rudd alleged “that the

arresting officers did not reply to his question why he was under arrest.” (April

18, 2001 Order at 2; Doc. 4). Because his initial filing did not identify facts that

would allow him to press a cognizable Fourth Amendment claim, the district court

granted Mr. Rudd leave “to present any additional facts or arguments in support

of his claim.” (April 18, 2001 Order at 3; Doc. 4) In an amended complaint, Mr.

Rudd alleged two grounds for relief. First, he contended, as he had in his initial

filing, that his Fourth Amendment rights were violated when the arresting officers

failed to tell him why he was placed under arrest. Second, Mr. Rudd alleged that

the police officers did not have probable cause to make an arrest. (August 1,

2001 Order at 1-2; Doc. 7.) The district court dismissed both claims.

      On August 5, 2001, Mr. Rudd filed a Notice of Appeal with this Court.

(Doc. 12.) On September 7, 2001, he filed a brief with this Court, and on




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September 10, 2001, he submitted a letter to this Court asking to supplement the

record on appeal.

       In his appeal, Mr. Rudd reasserts that the arresting officers violated his

Fourth Amendment rights by not explaining why he was placed under arrest, or

even telling him that he was under arrest, until he was booked several hours later

at the police station. He also renews his claim that he was arrested without

probable cause. In addition, Mr. Rudd asserts, from the record, seemingly for the

first time, that the district court did not have proper venue over the case. We find

all of Mr. Rudd’s arguments to be frivolous and affirm the judgment of the

district court.

       As to the venue claim, Mr. Rudd alleges venue was improper because his

case was filed initially with the federal district court sitting in Wichita, then

transferred to Topeka, and transferred from Topeka to Kansas City, Kansas.

(Aplt. Br. at 1, 6.) Without offering any factual support, he asserts there is a

“discriminatory practice in sending the prisoners’ cases to Kansas City, Kansas.”

(Id. at 6.) Not only is Mr. Rudd’s venue claim without merit, see 28 U.S.C. §

1391(b), he has waived the issue by not properly raising it below. See FRCP

12(h)(1); 28 U.S.C. § 1406(b).

       Mr. Rudd’s claim that his constitutional rights were violated because police

officers only told him the grounds for his arrest at the time he was “booked” is


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also meritless. The Sixth Amendment only requires that a defendant be informed

of the charges against him when “the government has committed itself to

prosecution.” Kladis v. Brezek, 823 F.2d 1014, 1018 (7th Cir. 1987). The Fourth

Amendment–the Amendment Mr. Rudd looks to for relief–does not require

officers to tell a suspect the grounds for his arrest or even to expressly state that

he is under arrest; rather, it requires that officers have probable cause before

making an arrest. Dunway v. New York, 442 U.S. 200, 212-13 (1979) (finding

the even though a defendant “was not told he was under arrest,” his seizure fell

within the Fourth Amendment’s protection against “illegal arrests” and required a

showing of probable cause to be justified); United States v. Davis, 197 F.3d 1048,

1051 (10th Cir. 1999) (“An arrest is a ‘seizure’ for Fourth Amendment purposes

and is reasonable where there is probable cause to believe that an offense has

been or is being committed.”); United States v. Young, 105 F.3d 1, 6-8 (1st Cir.

1997) (discussing how a stop that turns into a de facto arrest must be supported by

probable cause); Kladis, 823 F.2d at 1018 (“[T]he Fourth Amendment requires

only that the police have probable cause to believe that an individual has broken

the law before arresting him.”).

      Finally, contrary to Mr. Rudd’s claim, the arresting officers had probable

cause to make an arrest. “Probable cause exists where the facts and

circumstances within the arresting officer’s knowledge and of which they had


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reasonably trustworthy information are sufficient in themselves to warrant a

person of reasonable caution to have the belief that an offense has been or is

being committed by the person to be arrested.” United States v. Alonso, 790 F.2d

1489, 1496 (10th Cir. 1986). In this case, officers initially received a 911

dispatch indicating that a Roland Azlum committed the rape and giving a physical

description of the assailant. While en route to the scene of the crime, at least one

of the arresting officers received a subsequent radio dispatch indicating that the

suspect was at the scene of the crime and that his name was Roland Rudd. Upon

arriving, one officer encountered a male matching the description of the alleged

assailant who identified himself as Roland Rudd. Inside the room where the rape

occurred, another officer found a distraught young woman cowering under a sink

and was told by another person present in the room that Mr. Rudd had raped the

victim. Moreover, as the Kansas trial court explained, the victim feared Mr.

Rudd. (Preliminary Exam Tr. at 25.) Such facts more than adequately show that

probable cause existed for the arrest.

      For the forgoing reasons, we deem Mr. Rudd’s appeal frivolous, AFFIRM

the district court’s rulings, and DENY Mr. Rudd’s motion to supplement the

record on appeal.




                                         -5-
      We also remind Mr. Rudd that although the district court granted his

application to proceed without prepaying the appellate filing fee, he must

continue making partial payments until the entire filing fee is paid.



                                       ENTERED FOR THE COURT



                                       David M. Ebel
                                       Circuit Judge




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