concurring:
I concur in the result. I agree that the act of hovering in a helicopter at an altitude of 50 feet within 251 feet of a residential building was under the circumstances of this case an unreasonable encroachment upon the vertical curtilage of appellant’s home and his reasonable expectations of privacy within that zone; and therefore, observations from that vantage did not come within the plain view exception. See generally California v. Ciraolo, 476 U.S. 207, 106 S.Ct. 1809, 90 L.Ed.2d 210 (1986); Dow Chemical Co. v. United States, 476 U.S. 227, 106 S.Ct. 1819, 90 L.Ed.2d 226 (1986).
I am concerned, however, that the majority opinion may be read to preclude any helicopter surveillance conducted at altitudes of less than 1000 feet (i.e. the distance approved in Ciraolo. In People v. Sabo, 185 Cal.App.3d 845, 230 Cal. Rptr. 170 (1986), cert. denied — U.S. —, 107 S.Ct. 2200, 95 L.Ed.2d 855 (1987), the California appeals court held unconstitutional and suppressible observations made from a helicopter hovering briefly at an altitude of 400-500 feet. The structure being observed was located an unspecified distance from a residence in a suburban back-yard. Even assuming that Sabo was correctly decided, it’s broad dictum that observations from levels below those specified in 14 C.F.R. § 91.79 (1000 feet in congested areas, 500 feet in non-congested areas) are per se unreasonable is not justified by the Ciraolo or Dow Chemical Co. decisions.
The question of precisely how far horizontal and vertical curtilage extends is problematic. I am unaware of any case, ancient or modern (other than Sabo, of course), which has attempted to delineate in definitive distances the minimum or maximum bounds of horizontal or vertical curtilage. Given the heightened significance of the ancient *328concept of curtilage in modern Fourth Amendment jurisprudence, we will no doubt be called upon to apply that feudal concept in the strikingly non-feudal context of urban and suburban housing, as well as in cases such as the instant one involving the distinctly modern concept vertical privity. Difficult as the adaptation of the concept may be, I am not inclined to forego development via the case by case common law method in favor of the expedient alternative of adopting agency or statutory distances set for entirely separate purposes. If 14 C.F.R. § 91.79 were amended to alter the specified altitudes, would the constitutionally protected parameters of vertical curtilage be likewise altered ipso facto? Can state or federal legislators or administrators conclusively define curtilage for constitutional purposes? I think not.
Moreover, not all entries upon the curtilage of private property are unreasonable. See Commonwealth v. McKiernan, 337 Pa.Super. 403, 487 A.2d 7 (1985) (police officer’s trespass on private land was reasonable in order to investigate possible shooting and to speak with particular person though to be present at the property and the evidence obtained while trespassing was therefore admissible, collecting cases); Commonwealth v. Shannon, 320 Pa.Super. 552, 467 A.2d 850 (1983) (police officer’s entry into curtilage area was reasonable in response to a “flight in progress” radio report, the evidence obtained while trespassing was admissible); Commonwealth v. Daniels, 280 Pa.Super. 278, 421 A.2d 721 (1980) (police officer’s approach to apartment, then “consensual” entry into apartment was reasonable in response to anonymous tip of an abduction in progress, the evidence obtained while trespassing was admissible); Commonwealth v. Cubler, 236 Pa.Super. 614, 346 A.2d 814 (1976) (police officer’s entry in curtilage area was reasonable to retrieve black bag suspiciously discarded or hidden by suspect in a doghouse, the evidence obtained while trespassing was admissible); accord People v. Houze, 425 Mich. 82, 92 & n. 1, 387 N.W.2d 807, 811 & n. 1 (1986) (police officer’s entry into curtilage area to look into a garage through a window was reasonable to investigate *329anonymous tip concerning a stolen car, collecting cases); Pistro v. State, 590 P.2d 884, 886-87 (Alaska 1979) (police officer investigating an anonymous tip that a stolen truck was in a particular garage, who could not see into garage from street, reasonably walked up to driveway to look into the garage, and, therefore, was lawfully in a position to see the stolen truck in the garage when the garage door was opened); I LaFave, Search & Seizure, § 2.3 at 378-423 (2nd Ed.1987). Indeed, “the presence or absence of an accompanying trespass is merely a factor to consider in determining the reasonableness of a visual intrusion.” Commonwealth v. Soychak, 221 Pa.Super. 458, 464, 289 A.2d 119, 122 (1972).
With respect to visual observations from helicopters, I am not willing to embrace Sabo’s broad per se proscriptions. Rather, I would consider the totality of the circumstances, including the hour of day the observation occurs, the altitude at which the observations are made, the duration of the surveillance (including successive passes over the property); the distance between any residential structure and the helicopter, and the reason for and purpose of the surveillance, in determining whether the police were reasonably (lawfully) situated at the vantage point from which the observation were made. Here, review of those factors compels the conclusion that the encroachment was unreasonable.
Lamentably, it appears that the same observations could easily have been obtained lawfully. The initial tip regarding the marijuana came from an anonymous informant who was presumably the pilot of a fixed wing aircraft. In order to corroborate the tip, the police conducted the challenged helicopter surveillance. Inexplicably, the police attempted to make their observations with their naked eyes rather than with the lawful assistance of ordinary binoculars. Cf Commonwealth v. Williams, 494 Pa. 496, 500, 431 A.2d 964, 966 (1981) (though observations through a “Startron” night scope were unreasonable under the circumstances, observations with ordinary binoculars were not); Common *330wealth v. Hernley, 216 Pa.Super. 177, 263 A.2d 904 (1970); cert denied 401 U.S. 914, 91 S.Ct. 886, 27 L.Ed.2d 813 (1971) (observations through ordinary binoculars were reasonable); see also Nicholson, Mechanically Aided Observations Under Fourth Amendment, 11 Search and Seizure L.R. 1, 1-7 (1984). Had binoculars been used, the descent from public airspace into the vertical curtilage of appellant’s private property would probably not have been necessary. This hindsight is not offered as a reproach to the police, I note this fact only to highlight the fact that our decision in this case need not unduly hamper reasonable narcotics enforcement efforts in future cases.*
I note that I place no reliance whatsoever upon the majority opinion of the divided panel in Commonwealth v. Lemanski, 365 Pa.Super. 332, 529 A.2d 1085 (1987).