(dissenting)—For the reasons expressed in my dissent in State v. Little, 116 Wn.2d 488, 806 P.2d 749 (1991), I also dissent in this case. However, I will address some concerns specific to this case that were not present in Little.
The majority sets out the standard for a Terry stop at page 513. In so doing, however, the majority omits one crucial part of the Terry analysis. In order to justify a stop *518with less than prohable cause, the officer "must be able to point to specific and articulable facts that give rise to a reasonable suspicion that there is criminal activity afoot." (Italics mine.) State v. White, 97 Wn.2d 92, 105, 640 P.2d 1061 (1982). It is the absence of any reasonable suspicion that Glover was involved in criminal activity that invalidates his stop. When the police stopped Glover, all they knew was that they did not recognize him. The police did not know for sure that Glover was not a resident, or the guest of a resident. There were no articulable facts that led to a reasonable conclusion that Glover was engaged in criminal activity. Therefore, the stop was invalid.
What the majority and the trial court fail to realize is that the initial stop of Glover must be reasonable for his conviction to stand. The trial court cited several factors as supporting its decision that the officers had a reasonable suspicion sufficient to justify the stop. Those factors are: (1) the officers did not recognize Glover, (2) Glover twisted his cap while walking away from the officers, (3) Glover had a plastic bag in his hand, (4) the officers did not believe Glover when he said he lived in the complex, and (5) Glover denied having anything in his hand when the officers could clearly see he was holding something. Report of Proceedings, at 34-35. Factors 3, 4, and 5, however, occurred after the police had already stopped Glover. Therefore, those factors cannot be used to justify the stop since they could not have been considered by the officers in making the initial stop. The totality of the circumstances that the officers could have legitimately considered in stopping Glover were that (1) they did not recognize Glover, and (2) Glover acted nervous as he walked away from the officers. Those factors do not justify the stop.
The majority relies heavily on the existence of an agreement between the apartment managers and the Seattle police for officers to stop anyone who is on the apartment grounds and whom the officers do not recognize as a resident. The majority implies that the agreement itself is a *519factor justifying the stop. As I explained more fully in the companion case, State v. Little, 116 Wn.2d 488, 502, 806 P.2d 749 (1991), a private agreement between two parties cannot grant the police power that the constitution denies them. Officers still need a reasonable and articulable suspicion that a person is engaged in criminal activity in order to make a Terry stop. The criminal trespass agreement simply does not provide any reasonable basis for believing that a particular individual is committing a crime.
The behavior of the police in this instance is even more egregious than that condoned by the majority in Little. Glover came out of a building in the apartment complex heading in one direction. He then changed his mind and headed in another. The police assert that he changed direction when he saw the officers. This is the officers' subjective impression. There is no objective evidence that Glover changed direction solely because he saw the officers. Even if he did, that in itself is not a suspicious circumstance. See State v. Larson, 93 Wn.2d 638, 645, 611 P.2d 771 (1980) (leaving upon arrival of police does not give rise to reasonable suspicion); State v. Thompson, 93 Wn.2d 838, 842, 613 P.2d 525 (1980) (rapid walking away from officers nothing more than inarticulable hunch and constitutionally insufficient to support detention). As one court noted:
It is only when a person's effort to avoid police contact is coupled with an officer's specific knowledge connecting that person to some other action or circumstance indicative of criminal conduct that the evasive action . . . takes on a sufficiently suspicious character to justify a stop.
People v. Thomas, 660 P.2d 1272, 1275-76 (Colo. 1983).
The officers' sole purpose for stopping Glover was to see if he was committing criminal trespass. Glover Fact-Finding Hearing, at 5,15. A person is guilty of criminal trespass if he "knowingly enters or remains unlawfully in or upon premises of another." RCW 9A.52.080(1). A person enters or remains unlawfully in or upon the premises of another if he is not then "licensed, invited, or otherwise privileged" to be there. RCW 9A.52.010(3). None of the circumstances *520existing at the time the officers stopped Glover justify a ! reasonable suspicion that he was trespassing.
The officers testified they did not recognize Glover as one of the hundreds of residents of the Lakeshore Village Apartments. However, there was no finding of fact made that the officers knew all of the residents by sight. The fact that the officers did not recognize Glover can hardly be the basis for a reasonable suspicion that he was committing trespass. He could have been a new resident, or he could have been the guest of a resident. Even if he were a stranger to the area, that fact by itself cannot be the basis for a Terry stop. Brown v. Texas, 443 U.S. 47, 61 L. Ed. 2d 357, 99 S. Ct. 2637 (1979); 3 W. LaFave, Search and Seizure § 9.3(c), at 453 (2d ed. 1987).
The officers also claimed Glover appeared nervous and twisted his cap on his head. Nervous behavior in the presence of police is an almost universal response, and cannot, by itself, justify a Terry stop. See 1 W. Ringel, Searches & Seizures, Arrests and Confessions § 13.4(b)(1), at 13-32 (1990) and cases cited therein.
The officers approached Glover and ordered him to stop. ;He obeyed the order and made no attempt to flee. At that moment he was seized for purposes of the Fourth Amendment and article 1, section 7. Nothing that happened after that point can be used to justify the initial stop.
When asked if he was a resident of the complex, Glover replied he was. That should have ended the interview but, based on a subjective determination, the officers did not believe him. Whether Glover was a resident was never established. An officer noticed a piece of plastic protruding from Glover's fist. He asked Glover what was in his hand and Glover replied, "Nothing." The officers demanded that Glover open his hand. Glover did so. His hand contained a plastic bag of what the officers believed to be cocaine. The bag did indeed contain the drug and Glover was charged with possession of cocaine.
The circumstances which the majority claims to support a Terry stop are that Glover walked away when he saw the *521officers, the officers did not recognize Glover, Glover played with his cap and there was a trespass agreement between the police and the apartment management. These circumstances do not amount to a reasonable suspicion that Glover was engaged in criminal activity. The officers testified that Glover began to act suspiciously. No objective, specific facts support this. The "suspicious" circumstances are consistent with entirely innocent behavior.
Since the initial detention violated the Fourth Amendment and article 1, section 7, the search which revealed the cocaine was unreasonable and unlawful. The cocaine should have been suppressed as "fruit of the poisonous tree". Wong Sun v. United States, 371 U.S. 471, 9 L. Ed. 2d 441, 83 S. Ct. 407 (1963).
Even if the stop was lawful, a search is allowed only where a police officer has reasonable grounds to believe that a suspect is armed and dangerous. Terry, 392 U.S. at 30. The search is limited to a patdown of the individual's outer clothing to determine if the individual possesses a weapon. The sight of the plastic protruding from Glover's hand cannot reasonably be perceived as a weapon. The officers' search of Glover went beyond the scope of a legitimate Terry stop.
The stop of Glover was not justified by an articulable suspicion based on specific, objective facts that the particular individual was engaged in criminal activity at the time he was observed by the officers. The public has a strong interest in crime prevention, however, ''[i]n the absence of any basis for suspecting appellant of misconduct, the balance between the public interest and appellant's right to personal security and privacy tilts in favor of freedom from police interference." Brown, 443 U.S. at 52. *522State v. Thompson, 93 Wn.2d 838, 843, 613 P.2d 525 (1980). This stop was illegal, and therefore the evidence should be suppressed and the conviction reversed.
*521There is an understandable desire by police officers to investigate what appear to be suspicious circumstances. Those investigations, however, must comport with Fourth Amendment protections. Otherwise, when a stop is not based on specifically articulated facts, "the risk of arbitrary and abusive police practices exceeds tolerable limits." Brown, at 52.
*522Smith, J., concurs with Utter, J.
Reconsideration denied October 2,1991.