                    UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT
                _____________________________________

                             No. 00-40797
                _____________________________________


                        Chance Ladayde CROUCH,

                                                 Plaintiff-Appellee,

                                  V.

                         Kim SANCHEZ; ET AL.,

                                                 Defendants,


                           Kim SANCHEZ,

                                                 Defendant-Appellant.


          __________________________________________________

             Appeal from the United States District Court
                   For the Southern District of Texas
                              (B-98-CV-170)
          __________________________________________________
                            November 14, 2001


Before DAVIS, GARWOOD, and MAGILL*, Circuit Judges.

PER CURIAM:**

     Chance Ladayde Crouch sued the Town of South Padre Island,

Texas (“the Town”), and Kim Sanchez, a former police officer

employed by the Town, in her individual and official capacity.

Crouch asserted claims under 42 U.S.C. § 1983, for violations of

     *
      Circuit Judge for the Eighth Circuit, sitting by designation.
     **
      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this opinion should not be published and is not precedent except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.
his rights under the Fourth and Fourteenth Amendments, and also

various state law claims.    Sanchez, in her individual capacity,

filed a motion for summary judgment based on qualified immunity.

The district court granted the motion in part, dismissing the

claims against Sanchez under state law, but denied the motion as

to Crouch’s § 1983 claims.    Sanchez now brings this interlocutory

appeal challenging the district court’s denial of her motion for

summary judgment based on qualified immunity with respect to the

§ 1983 claims.   Because we conclude that Sanchez was entitled to

qualified immunity in this case, we reverse the judgment of the

district court and render judgment for Sanchez.

                                 I.

     This lawsuit arises from Sanchez’s arrest of Crouch for

driving while intoxicated (“D.W.I”) on November 13, 1996.    The

summary judgment evidence establishes the following facts.     On

November 13, 1996, Sanchez received a telephone call from

Crouch’s wife, Cynthia Crouch.   Ms. Crouch informed Sanchez that

her husband had been out drinking all night, was intoxicated, and

was driving his automobile.   Ms. Crouch stated that she was

afraid her husband would get into an accident and hurt someone.

After speaking with Ms. Crouch, Sanchez observed Crouch’s vehicle

parked at Padre Island Pizza, Crouch’s place of business, which

is located across the street from the police department.    At

about ten o’clock in the morning, Sanchez was advised that



                                 -2-
Crouch’s vehicle had left Padre Pizza and was traveling

northbound on Padre Boulevard.    Sanchez advised other officers

and then proceeded in her unmarked patrol unit in pursuit of

Crouch.   Sanchez observed Crouch driving erratically;

specifically, Crouch pulled out in front of her, requiring her to

brake suddenly.    Crouch then reversed direction and headed south.

The vehicle then made an abrupt left turn, without signaling, and

entered the Padre Island Pizza parking lot.     Crouch exited the

vehicle and quickly walked inside.     Sanchez followed Crouch and

entered the establishment through the restaurant’s front door,

which was unlocked.

     Once inside the pizza parlor, Sanchez observed Crouch using

the telephone.    Crouch presented the affidavit of J.J. Avila,

Crouch’s friend, with whom Crouch was speaking on the telephone

when Sanchez entered the restaurant.     Avila states that he heard

a voice in the background state, “You are under arrest for

driving with a suspended license.”     Avila states he then heard

Crouch reply, “My driver’s license isn’t suspended!”     According

to Avila, the voice then stated, “Well, you are under arrest for

D.W.I.. Please step outside.”    Sanchez denies that she made any

statement concerning a suspended license.

     The rest of the events are undisputed.     Sanchez then asked

Crouch to come out from behind the counter, explaining that she

had received a report that Crouch had been drinking.     Crouch



                                 -3-
stated, “My wife called you, didn’t she?”     Sanchez observed

Crouch to have glassy eyes, dilated pupils, and she smelled

alcohol on his breath.    Two other officers, Harris and Alvarado,

arrived on the scene.    Crouch became argumentative and refused to

participate in field sobriety tests.     Sanchez then advised Crouch

that he was under arrest for DWI.      Crouch raised the phone as if

to strike Sanchez, but the other officers moved in, handcuffed

Crouch, and took him to the police department.     There, Crouch

refused to take the intoxilizer test, but was administered and

failed the horizontal gaze nystagmus test.     The district attorney

declined to prosecute Crouch on the D.W.I. charge.

                                 II.

     Crouch filed this action against the Town and Sanchez, in

her official and individual capacity, under 42 U.S.C. § 1983,

alleging violations of the Fourth and Fourteenth Amendment, and

also under Texas law.    Sanchez then moved for summary judgment

based on qualified immunity.    In opposition to Sanchez’s motion,

Crouch presented affidavits of Crouch, his former wife Cynthia

Crouch, and Avila, as well as part of the transcript from

Crouch’s trial for resisting arrest.     The district court refused

to consider the affidavits of Crouch and his former wife, on the

grounds that the affidavits did not state that they were based on

personal knowledge, and thus, were not competent summary judgment

evidence.   Crouch does not assert that the district court erred



                                 -4-
in disqualifying this evidence.     The district court nevertheless

denied Sanchez’s motion for summary judgment with respect to

Crouch’s § 1983 claims.   Sanchez now appeals this ruling.

                               III.

     Before reaching the merits of this case, we first must

consider whether this court has jurisdiction over this appeal.

Federal courts have jurisdiction of “appeals from all final

decisions of the district courts.”1     “[A] district court’s denial

of a claim of qualified immunity, to the extent that it turns on

an issue of law, is an appealable ‘final decision’ within the

meaning of 28 U.S.C. § 1291 notwithstanding the absence of a

final judgment.”2

     This court reviews de novo the denial of a motion for

summary judgment predicated on qualified immunity.3     Summary

judgment is proper “if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment

as a matter of law.”4   We review the “evidence and inferences to

be drawn therefrom in the light most favorable to the non-moving

     1
          28 U.S.C. § 1291.
     2
          Mitchell v. Forsyth, 472 U.S. 511, 530 (1985).
     3
          See Hayter v. City of Mount Vernon, 154 F.3d 269, 274
(5th Cir. 1998).
     4
          Fed. R. Civ. P. 56(c).

                                  -5-
party.”5

     The doctrine of qualified immunity protects government

officials performing discretionary functions from civil liability

if their conduct violates no “clearly established statutory or

constitutional rights of which a reasonable person would have

known.”6   A determination of whether a police officer is entitled

to qualified immunity from liability under § 1983 involves a two-

step analysis.   First, the court must determine whether the

plaintiff has alleged a violation of a clearly established

constitutional right.7   A constitutional right is “clearly

established” for qualified immunity purposes if “[t]he contours

of the right [are] sufficiently clear that a reasonable official

would understand that what he is doing violates that right.”8

Second, even if the first prong is satisfied, the official is

nonetheless entitled to qualified immunity if her conduct was

objectively reasonable.9

     Crouch alleges two related constitutional violations in his

§ 1983 action: (1) Sanchez’s entry into Crouch’s place of

business to effect his arrest violated Crouch’s Fourth Amendment

     5
          Gibson v. Rich, 44 F.3d 274, 276 (5th Cir. 1995), quoting
Fraire v. Arlington, 957 F.2d 1268, 1273 (5th Cir. 1992).
     6
           Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
     7
           See Hayter, 154 F.3d at 274.
     8
           Anderson v. Creighton, 483 U.S. 635, 640 (1987).
     9
           See Hayter, 154 F.3d at 274.

                                -6-
rights; and (2) Sanchez lacked probable cause to arrest Crouch at

all, and therefore, violated his Fourth Amendment rights.     We

address each of these arguments in turn in light of the summary

judgment and qualified immunity standards set forth above.

                                  A.

     Crouch first argues that Sanchez violated his Fourth

Amendment rights when she entered Crouch’s place of business and

arrested him.    The Fourth Amendment prohibits police officers

from entering a person’s home to conduct a search or an arrest

without a warrant, absent exigent circumstances.10    Warrantless

arrests based on probable cause are lawful when conducted in a

public place, however.11

     In this case, Sanchez followed Crouch into Padre Island

Pizza, Crouch’s place of business, to arrest Crouch at about ten

o’clock on a Wednesday morning.     The doors of the pizza parlor

were unlocked.    Sanchez saw Crouch enter the pizza parlor after

Crouch parked his car in its parking lot.     Sanchez then

approached the front door, opened it, and entered the restaurant,

where Crouch was behind the front counter using the telephone.

The summary judgment evidence does not suggest that the pizza

parlor was closed to the public at the time of Crouch’s arrest.

Based on the summary judgment evidence in this case, therefore,


     10
          See Payton v. New York, 445 U.S. 573, 590 (1980).
     11
          See United States v. Watson, 423 U.S. 411, 423-24 (1976).

                                  -7-
the restaurant is a public place for Fourth Amendment purposes.

The Fourth Amendment did not require “exigent circumstances” for

Sanchez to enter the restaurant and make the arrest without a

warrant.   Therefore, as a matter of law, Crouch has not asserted

the violation of a clearly established right with respect to

entry into the pizza parlor.   Thus, we conclude that Sanchez is

entitled to summary judgment on the basis of qualified immunity

on this issue.

                                B.

     Crouch next argues that Sanchez violated his Fourth

Amendment rights because Sanchez did not have probable cause to

arrest him for D.W.I..   The Fourth Amendment requires that

warrantless arrests be made with probable cause.12    Probable

cause is a single, flexible, fact-based standard.13    It is

analyzed in terms of what a reasonable officer would conclude

from the information in her possession.14   The probable cause

analysis considers why the officer believed the individual

committed the offense and whether, on the information available,

a reasonable person would come to the same objective

conclusion.15

     12
           See Hinshaw v. Doffer, 785 F.2d 1260, 1266 (5th Cir.
1986).
     13
           See Draper v. United States, 358 U.S. 307, 313 (1959).
     14
           See id.
     15
           See Henry v. United States, 361 U.S. 98, 102 (1959).

                                -8-
     Where an individual asserts a claim for wrongful arrest,

qualified immunity will shield the defendant officer from suit if

“‘a reasonable officer could have believed [the arrest at issue]

to be lawful, in light of clearly established law and the

information the [arresting] officers possessed.’     Even law

enforcement officers who ‘reasonably but mistakenly conclude that

probable cause is present’ are entitled to immunity.”16

     The summary judgment evidence considered by the trial court

in this case establishes that Sanchez received a phone call from

Crouch’s wife, Cynthia, who informed Sanchez that her husband was

intoxicated and was driving his automobile.     Sanchez observed

Crouch driving erratically on South Padre Boulevard.     Once inside

the restaurant, Sanchez observed Crouch to have glassy eyes,

dilated pupils and smelled alcohol on Crouch’s breath.       Crouch

was argumentative and hostile.     Sanchez then informed Crouch he

was under arrest for D.W.I..   No evidence accepted by the

district court as appropriate summary judgment evidence

contradicts these facts.   This court has found probable cause

under closely analogous facts.17     We conclude that this

uncontroverted evidence establishes, as a matter of law, that


     16
          See Hunter v. Bryant, 502 U.S. 224, 227 (1991) (quoting
Anderson, 483 U.S. at 641).
     17
          See, for example, Gibson, 44 F.3d 274 (reversing trial
court’s denial of qualified immunity to police officer in a § 1983
wrongful arrest claim on basis of summary judgment evidence similar
to this case).

                                   -9-
Sanchez was objectively reasonable in believing she had probable

cause to arrest Crouch.   Therefore, Sanchez is entitled to

summary judgment based on qualified immunity on this issue as

well.18

                                IV.

     For the reasons stated above, we REVERSE the judgment of the

district court and RENDER summary judgment for Sanchez, in her

individual capacity, on the basis of qualified immunity.

REVERSED AND RENDERED.




     18
          Based on the transcript of the April 20, 2000, summary
judgment hearing, the district court apparently found that the
affidavit of Avila, Crouch’s friend, presented a genuine issue as
to probable cause for the arrest.     Indeed, the Avila affidavit
contains the only factual dispute in all the summary judgment
evidence considered by the district court. In his affidavit, Avila
claims that he overheard a voice, presumably Sanchez’s, stating
that Crouch was under arrest for driving with a suspended license.
When Crouch replied that his license was not suspended, Avila
states that the voice replied, “Well, you are under arrest for
D.W.I.. Please step outside.” This exchange, even if true, is
immaterial to the issue of whether Sanchez had probable cause to
arrest Crouch for D.W.I..

                                -10-
