                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                              F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  October 9, 2003

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 03-20378
                         Summary Calendar



KEVIN MCGAUGHY; DAVID MCGAUGHY,

                                      Plaintiffs-Appellants,

versus

THE CITY OF HOUSTON, TEXAS; ET AL.,

                                      Defendants,

THE CITY OF HOUSTON, TEXAS; THOMAS P. NIXON,

                                      Defendants-Appellees.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                      USDC No. H-02-CV-2417
                       --------------------

Before JONES, BENAVIDES, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Kevin and David McGaughy appeal the district court’s summary

judgment in favor of the City of Houston and Police Officer

Thomas Nixon and the denial of their summary-judgment motion.

They argue that their arrest was unreasonable under the Fourth

and Fourteenth Amendments because Nixon had no warrant or

probable cause to arrest them inside their hotel room and the

     *
        Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                             No. 03-20378
                                  -2-

alleged Class C misdemeanor city ordinance fire code violation

was not committed in Nixon’s presence or view.

     Summary judgment is proper “if the pleadings, depositions,

answers to interrogatories, and admissions on file, together with

any affidavits filed in support of the motion, show that there is

no genuine issue as to any material fact and that the moving

party is entitled to judgment as a matter of law.”       FED. R. CIV.

P. 56(c).

     The McGaughys’ argument that their arrest was “per se

unreasonable” under the Fourth Amendment because Nixon had no

warrant and the alleged misdemeanor was not committed in Nixon’s

view or presence is foreclosed by this court’s decision in Fields

v. City of South Houston, Texas, 922 F.2d 1183, 1189 (5th Cir.

1991).   Although the Constitution does not require a warrant for

misdemeanors not committed in the presence of the arresting

officer, it does require that such an arrest be supported by

probable cause.   See id.   Probable cause exists “when the

totality of the facts and circumstances within a police officer’s

knowledge at the moment of arrest are sufficient for a reasonable

person to conclude that the suspect had committed or was

committing an offense.”     Glenn v. City of Tyler, 242 F.3d 307,

313 (5th Cir. 2001) (internal quotation marks and citation

omitted).   A police officer is entitled to qualified immunity for

an arrest if a reasonable person in the officer’s position could

have believed he had probable cause to arrest.     Id.
                             No. 03-20378
                                  -3-

     As the district court determined, it was undisputed that a

fire was set in the McGaughys’ hotel room.    The McGaughys admit

that there was a faint odor of smoke when Nixon entered the hotel

room and that he discovered some burnt paper in a waste basket.

There was also no dispute that hotel personnel found it necessary

to alert the police and fire departments regarding the fire.     The

record also shows that hotel employee Roberto Dorta informed

Nixon, upon his arrival at the hotel, of suspicious actions on

the part of the McGaughys.    Based on the above undisputed facts,

Nixon’s arrest of the McGaughys was at least “arguably

reasonable.”   See Glenn, 242 F.3d at 313.

     Contrary to the McGaughys’ contentions, Nixon was not

required to accept the McGaughys’ explanation that the fire was

accidental “if the surrounding circumstances would validly lead a

reasonable officer to conclude that [a crime had been

committed].”   See id. at 313 n.3.   Furthermore, “probable cause

is not destroyed by a suspect’s denial.”     Id. (citation omitted).

Although the McGaughys also assert that it was never proved that

a violation of any law occurred, probable cause does not require

proof beyond a reasonable doubt, but only a showing of the

probability of criminal activity.    United States v. Brown, 941

F.2d 1300, 1302 (5th Cir. 1991).
                            No. 03-20378
                                 -4-

     Although the McGaughys complain that Nixon entered the room

without knocking, without consent, and without a warrant, the

fact that their hotel room was potentially on fire constituted an

“exigent circumstance” rendering Nixon’s warrantless entry into

the room reasonable.   See Michigan v. Tyler, 436 U.S. 499, 511

(1978).   Although the McGaughys contend that, after entering the

room and confirming that there was no fire, Nixon was required to

leave and obtain an arrest warrant, they rely on authority that

did not involve exigent circumstances.

     In their reply brief, the McGaughys argue that the City

should be held liable under 42 U.S.C. § 1983 for Nixon’s alleged

unconstitutional actions.   Because the McGaughys did not brief

their municipal-liability claims against the City in their

opening brief, those claims have been waived.   See Cinel v.

Connick, 15 F.3d 1338, 1345 (5th Cir. 1994).

     Based on the foregoing, the district court’s judgment is

AFFIRMED.
