(dissenting)—The majority sets out the standard by which investigatory stops have been measured since Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968), and then ignores it, giving police officers carte blanche to stop anyone based on their own subjective reasons. By ignoring those standards in this opinion and its companion case, State v. Glover, 116 Wn.2d 509, 806 P.2d 760 (1991), the majority creates the very real danger that *500law enforcement officials will rely on these opinions and engage in conduct that is clearly below federal constitutional standards. In doing so, those officers may well commit reversible error in cases of far greater magnitude than these trespass cases. As Chief Justice Burger, writing for a unanimous court, noted in Browm v. Texas, 443 U.S. 47, 52, 61 L. Ed. 2d 357, 99 S. Ct. 2637 (1979):
In 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. The . . . statute under which appellant was stopped ... is designed to advance a weighty social objective in large metropolitan centers: prevention of crime. But even assuming that purpose is served to some degree by stopping and demanding identification from an individual without any specific basis for believing he is involved in criminal activity, the guarantees of the Fourth Amendment do not allow it. When such a stop is not based on objective criteria, the risk of arbitrary and abusive police practices exceeds tolerable limits.
443 U.S. at 52.
The United States Supreme Court has decreed that an investigatory stop can only be justified if there is "some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity." United States v. Cortez, 449 U.S. 411, 417, 66 L. Ed. 2d 621, 101 S. Ct. 690 (1981). The trial courts in the cases before us today made no findings that there were sufficient facts to justify a Terry stop. Even if such a finding had been made, a review of the record shows that, as a matter of federal law, the facts are insufficient to justify the stop. The convictions should therefore be reversed.
In oral argument before this court the prosecutor did not argue that the facts in these cases justify a Terry stop. Instead, she argued that Terry standards do not apply to minimal police intrusions in high crime areas. The Supreme Court flatly rejected that argument in Brown v. Texas, supra. What the prosecutor asked this court to do, and what the majority does without acknowledging it, is create a standard below that required by the federal courts, and *501by the constitution. This we cannot do. The United States Supreme Court sets the minimum constitutional standards governing police stops of individuals. This court cannot go below those standards.
Both the majority and the trial courts in these cases seem to believe that the posting of a "No Loitering" sign somehow provides an officer with the basis for a Terry stop. There is no ordinance or statute prohibiting mere loitering because statutes prohibiting mere loitering are unconstitutional. Papachristou v. Jacksonville, 405 U.S. 156, 31 L. Ed. 2d 110, 92 S. Ct. 839 (1972); State v. Martinez, 85 Wn.2d 671, 675, 538 P.2d 521 (1975) ("[A] statute which simply proscribes 'loitering' is impermissibly vague because the word loiter standing alone does not necessarily connote sinister or illegal activity"), overruled on other grounds in State v. Smith, 93 Wn.2d 329, 336 n.2, 610 P.2d 869, cert. denied, 449 U.S. 873 (1980). Loitering is not trespassing and the act of loitering does not provide reasonable suspicion that the loiterer is trespassing. Therefore the mere presence of a "No Loitering" sign cannot be the justification for a Terry stop. Yet today, the majority allows laws which are otherwise constitutional to be enforced in an unconstitutional manner by targeting a specific group of people for the purpose of preventing their loitering in public housing projects, on the assumption that the only reason they would have for being there is to engage in criminal activity. Such a decision is repugnant to the constitution.
I
Little
A
When the police first observed him, Little and a friend were walking across the apartment complex grounds. At the time Officer Colman was chasing several other individuals. Colman did not recognize Little as being one of the people in the group he was sent to investigate. At the moment Colman saw him, Little was doing nothing suspicious. In fact, Colman testified that at first he was not interested in *502Little. Little Fact-Finding Hearing, at 13. Colman only became interested in him when Little started running. Col-man then followed Little and ordered him to stop. At the moment Colman ordered him to stop, Little was seized within the meaning of the Fourth Amendment. State v. Friederick, 34 Wn. App. 537, 541, 663 P.2d 122 (1983). The question before this court is whether that seizure was reasonable.
United States v. Cortez, supra, establishes that reviewing courts must look at the totality of the circumstances presented to the arresting officer to determine whether a stop is reasonable. Under Cortez, "the detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity." Cortez, 449 U.S. at 417-18. Reviewing the totality of the circumstances surrounding the Little stop reveals that the stop was not reasonable.
The majority holds that "the criminal trespass investigation agreement, the report concerning loitering juveniles, the numerous posted signs warning against loitering, and Little's flight" justified the stop. Majority, at 496. These factors simply do not support the stop.2
First, the criminal trespass investigation agreement is a private agreement between the owners of the complex and the police department. That private agreement cannot be the basis for a stop that is prohibited by the constitution. It is a very dangerous idea to assert that constitutional protections can be subverted by such agreements. Under the constitution the police need articulable suspicion in order to stop someone. The State argued that the criminal trespass agreement gives the police the power to stop with less than an articulable suspicion. That agreement cannot give the police authority that the constitution forbids them. The *503agreement, itself does not provide articulable suspicion that any particular individual is engaged in criminal activity. Absent articulable suspicion, the stop is not justified.
Second, there is no evidence to indicate that Little was part of the group that the police were called to investigate. That group dispersed when the police arrived. Colman admitted that he did not know if Little had been a member of that group. Colman also admitted he did not know if Little lived in the complex. At the time he ordered Little to stop, Colman had no reason to believe Little was a part of the group the police were sent to investigate, and therefore the original call to the police cannot be part of the justification for stopping Little.
Third, the "No Loitering" signs have no bearing on the legitimacy of the stop. Little was not loitering when Col-man first saw him. When Colman first saw him, Little was walking with a friend. Colman did not know if Little was a resident or the guest of a resident. At that moment he had no reason to suspect Little of loitering.3
Finally, Little's flight cannot, by itself, justify the stop. As outlined above, none of the other reasons given by the majority could have legitimately played a part in the officer's decision to seize Little. Colman stated that all he knew about Little was that "he was a black male in the area." Little Fact-Finding Hearing, at 21. The officer only became interested in Little when Little ran. Little Fact-Finding Hearing, at 13, 23. From the officer's testimony, it is clear that if Little had not run away the officer would not have stopped him. Applying the totality of the circumstances test, the only factors the officer could have considered when he decided to seize Little were: (1) Little is a black male, and (2) Little ran. Surely race cannot be a factor in justifying a stop. That leaves the majority only with flight as possible justification for the stop.
*504This court has never held that flight alone justifies a Terry stop. In State v. Sweet, 44 Wn. App. 226, 721 P.2d 560, review denied, 107 Wn.2d 1001 (1986), the Court of Appeals stated:
Courts have generally regarded flight in the presence of police officers to be a circumstance that may be considered along with other factors . . ..
(Italics mine.) 44 Wn. App. at 230-31. Flight alone is not enough. In Sweet, the police saw a man standing "flattened" against a building late at night in an area where there was little or no traffic and all of the businesses were closed. He was near a truck that had been reported to the police as. a suspicious vehicle. Under those circumstances, the fact that the suspect also ran when he saw the police could be considered in determining whether there was articulable suspicion that the man was engaged in criminal activity. 44 Wn. App. at 230. There simply are no circumstances like that in Little's case.
Little was simply walking with a friend. As he was walking the police chased a group of people past him. His friend took off running. The police officer looked at him. Under those circumstances it may have been entirely reasonable for Little to run. Whatever Little's motivation for running, the act itself does not justify the stop. People v. Thomas, 660 P.2d 1272, 1275 (Colo. 1983); People v. Aldridge, 35 Cal. 3d 473, 674 P.2d 240, 198 Cal. Rptr. 538, 541 (1984); 3 W. LaFave, Search and Seizure § 9.3(c), at 453 (2d ed. 1987); 1 W. Ringel, Searches & Seizures, Arrests and Confessions § 13.4(b)(3), at 13-35 (1990).
B
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 premises of another if he is not "licensed, invited, or otherwise privileged" to be there. RCW 9A.52.010(3). The State must prove each element of a crime beyond a reasonable doubt. In re Winship, 397 U.S. *505358, 25 L. Ed. 2d 368, 90 S. Ct. 1068 (1970). Therefore, to find Little guilty of criminal trespass, the State must prove beyond a reasonable doubt that Little was not licensed, invited, or otherwise privileged to be at the.Lakeshore Village Apartments.
The trial court made no finding of fact that Little was unlawfully on the property, yet it convicted him of criminal trespass. In so doing the trial court relied on the fact that Little ran, that there were "No Loitering" signs posted, and that Little ran into a building and tried to shut the door on the officer. Little Fact-Finding Hearing, at 30. None of these factors support a finding that Little was unlawfully on the property. The trial court relieved the State of its burden by convicting Little without any evidence that at the time he was observed by the officer, Little was unlawfully on the property. Even if the officer had reasonable suspicion to stop the group of youths congregated in the complex, when the officer happened upon Little walking through the complex, he did not know whether Little was part of the original group. Thus, he had no specific suspicion with respect to Little. See State v. Thompson, 93 Wn.2d 838, 841, 613 P.2d 525 (1980) (the mere proximity to others independently suspected does not justify the stop). The officer admitted he had no idea whether Little might be trespassing. Little Fact-Finding Hearing, at 22. The only reason he had for ordering Little to stop is that Little ran away when he saw the officer.
Leaving the presence of a police officer, by itself, is not suspicious. State v. Larson, 93 Wn.2d 638, 645, 611 P.2d 771 (1980). Since the officer could articulate no specific, objective facts from which it could be reasonably inferred that Little was trespassing at the time the officer ordered him to stop, Little's detention violated the Fourth Amendment and Const. art. 1, § 7.
There was no competent evidence presented that Little was unlawfully on the premises. No rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Therefore the State failed to *506sustain its burden of proof and Little's conviction for criminal trespass should be reversed.
A person is guilty of obstruction if he "knowingly hinder [s], delay[s], or obstruct[s] any public servant in the discharge of his official powers or duties". RCW 9A.76.020. Refusing to obey a police officer's order to stop may constitute obstruction. However, a person's refusal to stop cannot be the basis for criminal liability unless the officer has a legal basis for stopping that person. As discussed above, an officer may not stop an individual unless the officer has a reasonable suspicion based on "specific and articulable facts" that the person stopped is engaged in criminal activity. Terry v. Ohio, 392 U.S. 1, 21, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968); State v. Kennedy, 107 Wn.2d 1, 4-6, 726 P.2d 445 (1986).
In this case the officer did not have specific and articulable facts to warrant a Terry stop. Therefore, Little had the right to refuse to cooperate with the officer. United States v. Mendenhall, 446 U.S. 544, 553, 64 L. Ed. 2d 497, 100 S. Ct. 1870 (1980). Little's refusal to cooperate cannot provide the basis for his arrest or detention. Terry v. Ohio, supra at 34 (White, J., concurring); State v. White, 97 Wn.2d 92, 106, 640 P.2d 1061 (1982). It is illogical to maintain that a person has a right to refuse to cooperate with an officer and then to hold that the person who exercises that right is guilty of obstruction. Since the officer lacked the reasonable suspicion necessary to detain Little, Little's refusal to obey the officer's order cannot be obstruction. The obstruction conviction should be reversed.
II
Davis and Hayden
Two police officers pulled into the parking lot at Lake-shore Village Apartments to conduct a "premise check". The officers noticed a group of about 10 young people standing in the parking lot. The officers testified that they did not immediately recognize anyone in the group as being one of the 500 or so residents of the complex. Therefore, *507the officers decided to confront them to find out if they lived there. The 10 people started to walk away, and the officers ordered them to stop. At that point those 10 people were seized within the meaning of the Fourth Amendment. State v. Friederick, 34 Wn. App. 537, 541, 663 P.2d 122 (1983). The fact that Davis and Hayden then ran is irrelevant to the analysis of whether the initial stop was justified. The issue is whether the initial order to stop was reasonable.
The majority cites the "No Loitering" signs, the fact that the officers did not recognize Davis and Hayden, and the fact that Davis and Hayden ran as factors that justify the stop. For the reasons discussed above in the Little portion of this opinion, the fact that there were "No Loitering" signs is irrelevant. Additionally, appellants' decision to run cannot be used to justify the initial stop, since they ran after the order to stop. That leaves only the fact that the officers did not recognize Davis and Hayden as possible justification for the initial stop. That factor does not justify the stop. Brown v. Texas, 443 U.S. 47, 61 L. Ed. 2d 357, 99 S. Ct. 2637 (1979).
In Brown v. Texas, supra, police saw a man in an alley known as a hangout for drug dealers. The officers did not recognize the man as living in the neighborhood, so they decided to stop him. The Supreme Court said those were not sufficient grounds to justify the stop. 443 U.S. at 52. It is not enough that the person stopped is a stranger in the area, even when the area is one of high crime activity. There still must be "reasonable suspicion, based on objective facts" that the person stopped is engaged in criminal activity. 443 U.S. at 51. There simply is no such reasonable suspicion in Davis and Hayden's cases.
Under Terry the initial order to stop must be justified by reasonable and articulable suspicion that the appellants were engaged in criminal activity. Under the totality of circumstances approach mandated by the United States Supreme Court, it is clear that the initial stop of Davis and Hayden was unjustified, and therefore was unreasonable. *508The only circumstance that the officers considered was that they did not immediately recognize Davis and Hayden. That factor cannot justify a Terry stop. Since the officers had no reasonable and articulable suspicion to stop Davis and Hayden in the first place, their decision to run cannot be construed as obstruction. Appellants' convictions should be reversed.
The police conduct which this court approves today is ripe for abuse. The Seattle Police Department's tactic of stopping and arresting young black males on Seattle Housing Project grounds, however well intentioned, has the potential for harassment. Amicus Curiae on behalf of Seattle-King County Public Defender Association reports that most of the cases against these juveniles are dismissed before trial. Brief of Amicus Curiae, at 11. Some individuals are cited for criminal trespass multiple times without ever being convicted. Brief of Amicus Curiae, at 12.
It is evident that the criminal trespass statute and the obstruction of a police officer statute are being used as antiloitering devices. The officer who arrested Little testified that he suspected Little of criminal trespass because he was loitering in the area. Report of Proceedings (Little), at 14. He further testified:
[I]n one of those areas where the city has an agreement with the manager or owners of the building to have people not loiter in those areas, an officer will speak to those individuals and advise them that there is an Ordinance prohibiting them from loitering in the area . . ..
Report of Proceedings (Little), at 16. Even the prosecutor seems to believe that the criminal trespassing statute is an antiloitering device, calling it in the brief a loitering ordinance. Brief of Respondent (Little), at 13. As discussed above, there is no ordinance prohibiting mere loitering, and the private agreement between the managers of the complex and the police cannot create a law where one does not exist.
The court's holding today gives police unfettered discretion to stop someone, even without reasonable suspicion *509that the person is engaged in criminal activity. The court has completely cut the Fourth Amendment's proscription against unreasonable searches and seizures from its moorings, an action which this court does not have the power to take. I do not discount the severity of the drug- and gang-related activity in today's society, but court sanctioned violation of constitutional rights is not an appropriate method of combating the problem. We must not cast aside constitutional protections and ignore individual rights in our attempts to combat crime. The convictions should be reversed.
Smith, J., concurs with Utter, J.
Reconsideration denied October 2, 1991.
The trial court seems to also have relied on the fact that Little ran into a building and attempted to shut a door on the officer. However, these events happened after the officer ordered Little to stop, and therefore cannot be used to justify that stop.
furthermore, there is no law against loitering. If Little was "loitering", he was simply violating an apartment policy and not breaking any law.